League of United Latin American Citizens v. Perry

LEAGUE OF UNITED LATIN AMERICAN CITIZENS v. PERRY, OF TEXAS, GOVERNOR

et al. et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF TEXAS Argued No. 05-204. March Decided June2006* Texas, 05-254, County, Perry, Travis et al. v. Gover- *Together with No. Texas, al., Texas, nor et et 05-276, v. Perry, Jackson al. Governor No. al., et GI 05-439, Perry, Forum Texas et al. Governor and No. Texas, al., et also on appeal from the same court. argued appellants Paul M. Smith for the cause appellants No. 05-276. With him on the briefs for were Sam Hirsch and J. Gerald Hebert. argued appellants

Nina Perales the cause No. 05-439. With her on the briefs was David Herrera Urias. argued

R. Ted Cruz, of Texas, Solicitor General the cause appellees for the state in all on cases. With him the brief Greg Attorney Barry were Abbott, General, McBee, R. First Attorney Deputy Assistant General, D. Burbach, Edward Attorney General, Cruse, Thollander, and Don L. Joel Aston, Adam W. Assistant Solicitors General.

Deputy argued Solicitor General Garre cause for the urging support United States as amicus curiae affirmance in appellees. of the state on With him the brief were Solicitor Attorney Clement,

General Kim, Assistant General James Flynn, Feldman, A. K. David and Lisa J. Stark. George Rios, L. Korbel, Garza,

Rolando Jose and Judith League A. Sanders-Castro filed briefs for the of United Latin appellants al., American et in Citizens No. 05-204. Renea County, appellants Texas, al., Hicks filed for briefs Travis et in No. 05-254. A.

Michael Garvin and K. a brief in all Louis Fisher filed appellees Long eases for Tina et M. Benkiser al. Robert Soechting, appellee filed brief in all for in cases Charles support appellants. of Ament III and Richard John S. appellee sup Gladden filed briefs for in Henderson, Frenchie port appellant County, of Travis et in No. Texas, al. 05-254. Gary Goldberg, Donahue, Bledsoe, L. David T. and Sean H. Hayes Dennis Courtland filed briefs for the Texas State- Area of for the Ad Conference the National Association in of appellants

vancement of Colored People support 05-276.† No. Kennedy the Court of announced the judgment

Justice Parts with and Court opinion respect delivered IV, Parts I and III, II-A an opinion respect and for the curiae all eases were filed of amici † Briefs reversal in urging Waldman; Goldberg and Michael Deborah by for Justice Brennan Center D. Dellinger, Jonathan Walter by Progress for the Center for American Hacker, Shors, Wice; Jeffrey Institute M. M. for Reform Matthew and A. Ortiz; Lucas et Daniel R. University by Professors al. by et al. for se, Pildes, Powe, Jr.; pro et al. Richard H. by and for Samuel Issaeharoff Issaeharoff, pro Mr. se. and Shambon, Nuechterlein, E. Leonard M. and Ogden, David W. Jonathan of Siegelbaum amici curiae League for the Jonathan H. a brief filed 05-204, al. reversal in Nos. urging Women of the United States et Voters 05-254, 05-276. and County Harold D. Hammett filed a brief for the Fort Worth-Tarrant No. Branch NAACP as amicus curiae urging 05-276. reversal for the Briefs of amici curiae in all cases were filed urging affirmance Utah, Gene Shurtleff, Attorney Mark by al. General of State Utah et Chanos, Johnson, Schaerr, J. Thompson, George C. N. James R. Steffen Ohio; Petro, Jim Attorney Nevada, Attorney General General of and Mary Marguerite by Exchange et al. Legislative for American Council Leoni; Josefiak; for Thomas J. Republican by for National Committee Krill, Jr., Shorey; P. J. for John Linda and by Senator Robert C. Jubelirer Speaker Georgia House of Glenn Richardson Representatives Strickland; Lewis Frank B. by for Anne W. by al. Ron Wilson et Wilson, Stephens pro S. Shawn and Mr. se. Mahoney as Maureen E. Henry Bonilla Congressman filed a brief amicus curiae No. urging affirmance in 05-439. curiae of amici Legal Briefs in all for the NAACP were filed cases Shaw, Jacqueline M. Fund, Inc., A Theodore Defense and Educational

Berrien, Chachkin, Adegbile; J. and Debo Blum Norman P. for Edward Levin; Reilly E. Frank M. Marc A. by al. by Heslop et al. for Alan et and Braden, Bensen; Gary Doherty, Marshall Robert and Clark H. for M. and Godfrey. A. H. Justin Nelson and Lee et King by al.

Briefs of amici curiae were filed No. 05-276 in for the North Carolina of Col- State Conference of the National Association for Advancement Chambers, Earls, S. and John Charles Anita Julius L. People by ored Cogan, pro Mr. se. Boger; by H. Cogan and for Neil

409 join, opin- which The and an Alito Chief Justice Justice respect opinion with II-B an ion to Parts and and II-C, respect II-D, to Part in which Justice and Souter Justice join. Ginsburg appeals judgment

These four cases consolidated are from a entered the United States District for the Eastern Court three-judge District of Texas. Convened as a court under § appellants’ 2284, 28 U. S. C. the court heard constitutional statutory challenges and to a 2003 enactment of the Texas Legislature drew State new district lines for the 32 Representa- seats Texas holds in United States House of (Though appellants join tives. do not each other as to all appellants claims, for the sake of convenience we refer to collectively.) judgment appel- In the court 2004 entered findings lees and issued detailed of fact and conclusions of curiam). Perry, Supp. (per Session law. 298 F. 451 2d This Court vacated that decision and remanded for consider- (2004). light ation v. Jubelirer, Vieth 541 S. 267 U. 543 (2004). appellants’ U. District S. Court reexamined political gerrymandering opin- claims careful and, a second again Perry, ion, held for the defendants. Henderson v. (2005). Supp. appeals F. 2d 756 These followed, and we (2005). probable jurisdiction. noted 546 U. S. Appellants plan contend the new is an unconstitutional partisan gerrymander redistricting and that the statewide § Voting Rights violates Act Stat. as Appellants amended, 42 U. S. C. 1973. also contend that polities drawing specific use of race and lines dis- Equal tricts violates the First Amendment and Protec- tion Clause of the Fourteenth Amendment. The three- judge panel, Higginbotham consisting Judge of Circuit and Judges brought Ward and considerable Rosenthal, experience expertise action, to the instant based on their knowledge people, history, geography. of the State’s Higginbotham Judges and Ward, moreover, had served on three-judge plan Legisla- court that drew the Texas 410 intimately familiar with they were replaced 2003, in so

ture eases. history and intricacies the dispositions on state- the the District Court’s We affirm Rights Voting gerrymandering the political claims and wide on against and remand We reverse Act District 24. claim respect Be- Voting Rights District 23. claim the Act equal pro- appellants’ race-based do not reach cause we gerrymandering as to political claim or the tection claim judgment on District Court the the 23, we vacate these claims.

I re- proper cases, first for the we To out a framework set districting history in litigation the and recent count the reappor- starting point appropriate the Texas. An the in 2000 the one from census tionment but delega- congressional resulted in a 30-seat 1990census representa- 27 the Texas, tion fori an increase of 3 seats over Bush before. tives allotted the State in decade See (1996). In 1991 the Texas Vera, 517 U. 956-957 S. Legislature time, the Demo- drew district lines. At the new legislature, Party cratic both houses the state controlled governorship, Congress. 19 of 27 seats the State’s appeared previous change In Yet to be the horizon. on years Party’s post-Reconstruction domi- the Democratic Party Republican eroded, nance over the had Republicans vote, of the statewide while received 47% supra, 763; Henderson, the Democrats received 51%. (herein- p. Appellee Perry etc., Brief et for al. in No. 05-204 Appellees). after Brief State moving Republican opposition could Faced with a be legislature congres- majority drew a status, state toward redistricting plan designed sional to favor Democratic candi- Using computer technology then-emerging draw dates. precision, legislature enacted district lines with artful gerrymander plan as the later described “shrewdest Amer- Cook, 1990s.” C. Almanac of Barone, Cohen, M. R. & (2001). p. supra, Henderson, ican Politics See Although plan by 767, and n. 47. the 1991 was enacted the legislature, Congressman state Democratic Martin Frost was acknowledged supra, as its Session, architect. at 482. The plan “carefully 1991 constructs democratic districts ‘with in- credibly packs ‘heavily Republican’ convoluted lines’ and just suburban areas into Henderson, few districts.” supra, (quoting at 767, n. 47 Barone Cohen, M. & R. Almanac (2003) (hereinafter p. of American Politics 2004, 1510 2004 Almanac)).

Voters who considered this unfair and unlawful treatment sought plan par to invalidate the 1991 as an unconstitutional gerrymander, tisan Slagle, but to no avail. See Terrazas v. (WD 1992); Supp. Slagle, F. Tex. Terrazas v. (WD 1993) curiam). Supp. (per F. 1162, 1175 Tex. The 1991 plan hopes realized the of Democrats and the fears of Re publicans respect composition to the of the Texas con gressional delegation. years The 1990’swere of continued growth Republican Party, for the Texas the end of sweeping the decade it was elections for statewide office. despite carrying Nevertheless, 59% of the vote in statewide Republicans only congressional elections in 2000, the won 13 supra, seats to the Henderson, Democrats’ 17. at 763. likely forgotten by These party events were either congressional when it came time to draw districts in con incorporate formance with the 2000 census and to two addi delegation. Republican tional Party seats for the Texas The governorship controlled the Senate; State it did not yet Representatives, control the State House of however. legislature pass As so constituted, was unable to redis tricting resulting litigation necessity scheme, and the aof plan comply court-ordered to with the one- Constitution’s person, requirement. one-vote Texas, See Balderas v. Civ. (ED 14, 2001) curiam), (per Action Tex., No. 6:01CV158 Nov. (2002), summarily App. aff'd, 536 U. E S. to Juris. State (hereinafter p. ment App. in No. 05-276, Balderas, 202a E to Statement). map districting re- congressional Juris. 1151C. litigation as Plan is known sulting the Balderas from three-judge court members of said, have two As we three-judge court later served on Plan 1151C that drew Thus we have judgment review. now under that issued concerning the re- comments their candid the benefit of litigation. Con- districting approach taken in the Balderas drawing congres- primary responsibility for scious that government, given political branches of sional districts party political “und[o] for the the work of one and hesitant sought three-judge court Balderas of another,” benefit redistricting draw- “only standards” when apply ‘neutral’ Supp. at 768. Once ing Henderson, 2d, 399 F. Plan 1151C. placing principles—such applied as these the District Court following county high-growth areas, new seats in the two avoiding pairing voting precinct of incum- and the lines, and map drawing leaving further free of ceased, bents—“the one-person, Ibid. change except one-vote.” to conform it to congressional resulted the 2002 elections 1151C, Plan Under majority delegation, in the Texas in a 17-to-15 Democratic majority Republican compared in votes for to 40% to a 59% Reflecting Id., on the statewide officein 2000. at 763-764. plan, candid the District in Henderson was Balderas Court “[t]he acknowledge practical effort was to effect of this Party gerrymander largely in leave the 1991 Democratic place ‘legal’plan.” Supp. at 768. 2d, as a 399 F. map “per- continuing of a court-drawn

The influence gerrymander,” [the 1991] petuated ibid., not lost was much they gained Republicans in control when, on Texas Representatives thus, both houses and, the State House of legislature. Republicans legislature “set in the representation congressional in del- out to increase their egation.” Supp. id., at 471. also Session, 2d, 298 F. See (“There single-minded pur- question little but that the enacting plan] [a pose Legislature was in new of the Texas partisan advantage”). protracted gain partisan After struggle, during legislators which Democratic left the State quorum requirements, legislature for time to frustrate congressional map districting enacted a new in October 2003. congressional It is called Plan 1374C. The 2004 elections disappoint plan’s Republicans did not drafters. won obtaining 21 seats to the Democrats’ while also 58% of against the vote in statewide races the Democrats’ 41%. supra, Henderson, at 764. appellants

Soon after Texas 1374C, enacted Plan chal lenged alleging it court, host of constitutional statu and tory Initially, judg violations. the District Court entered against appellants ment on all their Session, See claims. Supp. (Ward, concurring part 2d, id., F. at 457; J., dissenting part). Appellants sought relief here and, jurisdictional after their statements were this Court filed, vacating issued Vieth v. Jubelirer. Our order the District judgment remanding light Court for consideration in just Vieth was issued weeks before the 2004 elections. See (Oct. 18, 2004). 543 U. S. 941 On remand, District Court, believing scope questions of its mandate was limited to political gerrymandering, again rejected appellants’ claims. Supp. Judge Henderson, 2d, 399 F. at 777-778. Ward would granted theory—presented have relief under the to the court first on time remand—that mid-decennial redistrict ing one-person, requirement, violates the one-vote but he argument scope such concluded an was not within the (specially concurring). remand Id., mandate. at 779,784-785 II A Based on two similar theories that address the mid-decade redistricting, appellants argue character of the 2003 now par- Plan 1374Cshould be an invalidated as unconstitutional gerrymander. tisan Bandemer, In Davis v. 478 109 U. S. (1986), equal protection challenge Court held an to political gerrymander presents justiciable a or case contro-

414 disagreement what over

versy, was 118-127,but there id., at Compare apply. id., at 127-137 standard substantive (Powell, concurring opinion), id., J., 161-162 (plurality at persists. disagreement part). dissenting That part in in and such chal- have held plurality Vieth would of the Court A majority political questions, nonjusticiable but lenges be J., con- do See 541 U. at (Kennedy, declined to so. S., dissenting); curring judgment); (STEVENS, J., id., at 317 dissenting); id., J., (Breyer, id., (Souter, holding justiciability dissenting). not revisit the We do J., appellants’ offer proceed claims examine whether but do manageable, of fairness for measure reliable the Court determining partisan gerrymander violates whether a Constitution.

B addressing appellants’ arguments on mid-decade Before principles redistricting, appropriate to note some basic it is play Congress, in de- and the courts States, on roles congressional Ar- termining are to be drawn. how districts provides: ticle I of the Constitution Representatives shall be The House of “Section every by composed Year chosen second of Members People States of the several .... holding Times, Places Manner 4. The

“Section prescribed Representatives, shall be Elections for ... Legislature Congress by thereof; but the each State Regula- may any make or alter such time Law tions ... .” pri- explained, with the we “leaves States text,

This have mary apportionment con- responsibility their federal gressional Emison, v. 507 U. S. . . districts.” Growe . (1975) (1993); Chapman Meier, U. S. see also duty responsibility primarily (“[Rjeapportionment Smiley legislature body”); through or other of the State its

415 (1932)(reapportionment Holm, 285 355, v. U. S. 366-367 im- 4).§ plicated powers Congress, I, State’s under Art. as the provides, may text of the also Constitution set further re- quirements, respect districting generally and with it has required single-member districts. See Const., I, U. S. Art. §4; 90-196, Pub. L. 81 581, §2c; 2 Stat. U. S. C. Branch v. (2003). Smith, 538 254, U. S. 266-267 id., But see (multimember (plurality opinion) permitted by districts 55 2a(c) circumstances). Stat. C. U. S. in limited With respect redistricting change to a mid-decade districts drawn earlier in conformance with a decennial census, the Congress explicit Constitution prohibition. no state Although legislative plays primary branch role in congressional redistricting, precedents recognize our an im- portant districting plan role for the courts when a violates g., Wesberry See, Constitution. e. Sanders, 376 U. S. (1964). litigation example, This is an as we have discussed. plan comply When Texas did not enact a with the one- person, requirement one-vote census, under the Dis- necessary trict Court it redistricting map found to draw a on its required own. That federal courts are sometimes legislative redistrieting, to order however, does not shift the primary responsibility. locus of

“Legislative reappor- bodies should not leave their tionment tasks to the courts; federal but when those legislative responsibilities respond, do or the impractical a imminence of state election makes it obligation’ them it so, to do becomes the ‘unwelcome impose reapportion- the federal court to devise and plan pending legislative ment later action.” Wise v. (1978) Lipscomb, (principal opinion) 437 U. S. (1977)). (quoting Finch, Connor v. 431 U. 407, S. apart acting legislature’s from risk of without Quite expertise, quite apart a court from difficulties faces drawing map id., that is rational, fair and see at 414-415, Judiciary is unwel- obligation placed upon the Federal congressional is one districts drawing lines for

come because perform to ensure significant can acts a State of the most self-governance. That republican participation in citizen given body explicitly constitutional Congress is the federal noteworthy pref- statement of power also a over elections is process. As the Constitution erence for the democratic legisla- redistricting responsibilities foremost vests legislatively Congress, lawful, a and tures of the States by' preferable plan to one drawn enacted should be courts. legislature replace a acts to follow,too, if a

It should design, presumption plan one of its own no court-drawn legislative impropriety to act. decision should attach to Supp. 2d, Session, here, 298 F. As the District Court noted legisla that state 460-461, assumed our decisions have by plans replace remedial to court-mandated tures are free g., Upham enacting redistricting plans See, their e. own. (1982) curiam); supra, (per Wise, Seamon, 37, 44 U. v. 456 S. 415); opinion) supra, (principal (quoting Connor, (1966); Reynolds 73, Richardson, 384 Burns v. U. S. (1964). Underlying principle this Sims, U. S. plan legisla assumption prefer a court-drawn ordinary replacement contrary and ture’s be to the would political process. respect proper operation of the Judicial justify legislative legislative plans, reli cannot however, districting improper criteria for determinations. ance on mind, now turn to consider these considerations in I With challenges redistricting plan. appellants’ to the new

C by Appellants the Texas 1374C, claim that Plan enacted political gerry- Legislature- in is an unconstitutional they re- claim, A to effect mid-decennial decision, mander. objectives, districting, solely partisan vi- when motivated equal it protection because and the First Amendment olates legitimate public purpose group serves no one burdens political opinions because of its affiliation. mid- redistricting, appellants say, decennial nature reveals legislature’s Vieth, sole motivation. Unlike where the legislature required in the acted context of decennial redis- tricting, Legislature voluntarily replaced plan the Texas designed comply that itself was with new census data. obligation Because “no Texas had to act constitutional at all” Appellant Brief for Jackson et al. in No. 05-276, p. hardly surprising, according appellants, 26, it is to that the “[t]here question District Court found little is but that the single-minded purpose Legislature enacting of the Texas gain partisan advantage” Republi- Plan 1374Cwas to for the majority can minority, supra, Session, over Democratic at 470. presumption, invalidity perhaps

A rule, or a of when a redistricting plan adopted solely partisan mid-decade is for salutary appellants’ motivations is a one, view, for then inquire parties prove, courts need not about, nor the discrim- inatory partisan gerrymandering—a effects of matter that proved has elusive since Vieth, S., Bandemer. See U. (plurality opinion); (plurality Bandemer, 478 S., U. opinion). Adding simplicity to the test’s is it does not that quibble drawing with the of but individual district lines chal- lenges to decision redistrict at all. appellants’ adopting

For a of number for reasons, case convincing. begin appel- their test is with, not To the state dispute gain partisan lees the assertion that the “sole” was replace motivation for the decision Plan There 1151C. is pejorative some merit criticism, to that for the label over- partisan looks that indications motives did not dictate the entirety. plan legislature in its does seem to have de- purpose achieving cided to redistrict with the sole a Re- publican congressional majority, partisan but not aims did guide every it found, line drew. As the District Court contours of based some contested district lines were drawn supra, at Session, interests. local mundane and

on more appellants contend, appellees also The state 472-473. requests line-drawing a number contest, do legislators Brief for State honored. were Democratic state Appellees 34. arising

Evaluating legality of mixed motives out acts affixing single to those acts can complex, label be can perform- is an individual when the actor hazardous, even be g., Moore, 547 U. S. ing e. Hartman v. See, a discrete act. (2006). legislature and the the actor When 259-260 task can be even composite choices, the is a of manifold act legisla- separate daunting. Appellants’ attempt to more discarding 1151C from the com- Plan ture’s sole motive drawing plex of Plan 1374C it made while the lines of choices difficulty. skeptical, be how- We should seeks avoid based on ever, a claim that seeks to invalidate a statute legislature’s reference but so without unlawful motive does legislation enacted. the content setting skepticism aside, claim at- this a successful

Even gerry- tempting identify partisan acts of unconstitutional theory mandering appellants’ must what sole-motivation do explicitly a as measured a reliable burden, disavows: show rights. complainants’ representational For on the standard, rejected proposed majority test a of the a reason, this Court markedly appellants pre- one in Vieth that is similar to the today. Compare dissent- J., sent at 336 (Stevens, S., U. (“Just ing) in, race can a factor but cannot dictate as be districting partisanship process, outcome so too can of, drawing permissible in so lines, a district be consideration (“[A]n long predominate”), id., ac- it and at as does not personal ceptable purely nor rational basis can be neither opinion), partisan”), (plurality purely and id., at 292-295 judgment). concurring in id., J., at 307-308 (Kennedy, compel- is no more The sole-intent standard offered here ling 1374C circumstance that Plan when it linked to the legislation. The text and structure is mid-decennial nothing Constitution and our case law indicate there is inher- ently suspect legislature’s replace about a decision to mid- plan a decade court-ordered with one of its own. And even redistricting if there were, the fact of mid-decade alone is no political gerrymanders. sure indication of unlawful Under appellants’ theory, highly partisan gerrymander effective redistricting that coincided with decennial receive would less scrutiny bumbling, yet solely partisan, than a mid-decade redistricting. concretely, More the test would leave un- redistricting, touched the 1991 Texas which entrenched a party verge minority on striking status, while down redistricting plan, the 2003 majority which resulted Republican Party capturing larger share of the A seats. test similarly power plays treats these two effective ways such reliability different appellants does not have the ascribe to it. compared map challenged

Furthermore, to the Vieth, Republican majority which led congressional to a in the dele- gation despite majority a Democratic in the vote, statewide making party Plan 1374C can be seen as balance more congruent party power. to statewide To be sure, there is requirement no proportional constitutional representation, equating party’s statewide share of the vote with its portion congressional delegation rough of is a measure at congressional plan best. closely Nevertheless, a that more party power reflects the distribution of state seems a less likely partisan vehicle for discrimination than one that en- minority. Gaffney trenches an Cummings, electoral See (1973). By U. S. this measure, Plan can 1374C plan be seen as fairer than the that survived in Vieth previous plans—all pass two Texas three of which would the modified sole-intent test that Plan 1374Cwould fail. proposes symmetry

A brief for one of the amici a standard partisan by “comparing] that would measure bias how both (in turn) parties hypothetically they would fare if each had given percentage Gary received a Brief for vote.” map’s of a the measure that standard King et al. Under majority party fare better would to which a the extent bias is respective shares of minority party, should their than the Amici’s, compen proposed does standard vote reverse. provide of a measure appellants’ reliable failure sate for may degree asymmetry existence or fairness. The possible conjecture vote- large part depend about where on assuming choose a court could Even switchers will reside. prefer shifting voter reliably among models of different wary adopting a standard constitutional we are ences, map unfair results that would occur based on invalidates challenge Presumably hypothetical such state affairs. inequity arose. litigated feared if when the could be and (1967). Gardner, 136, 148 U. 387 S. Cf. Abbott Laboratories plaintiff fundamentally, face would the counterfactual More present, appellants: provid problem actual the ing as the same partisan deciding dominance much a standard for how utility altogether discounting its is too much. Without asym redistricting litigation, planning I would conclude metry alone not a reliable measure of unconstitutional partisanship. any judging par- workable

In the absence of other test gerrymanders, appellants’ focus on mid- tisan one effect of encourage redistricting partisan excess could be to decade pur- legislature redistricts decade, when a outset duty then immune its and is suant to decennial constitutional charge redis- If mid-decade from the of sole motivation. judicial subject tricting over- were or at least close barred every sight, legislators opposition incentive would also have try prevent legislative plan luck passage their of a negotia- might give than them a better deal with a court that Supp. political Henderson, tion rivals. F. with their See 2d, at 776-777.

D theory political gerrymandering Appellants’ is that second exclusively partisan purposes redistricting for mid-decade

421 one-person, requirement. They violates the one-vote ob- population legislative serve that variances in districts are only they despite good-faith tolerated if a “are unavoidable justification equality, effort to achieve absolute or for which (1983) Daggett, is shown.” Karcher v. 462 U. S. 730 (1969); (quoting Kirkpatrick Preisler, v. 531 U. S. omitted). quotation Working internal marks from this un- challenged premise, appellants contend that, because the population of Texas has shifted census, since the 2000 redistrieting, which relied census, on that created un- population lawful interdistrict variances. distinguish

To the variances Plan from 1374C those ordinary, 3-year-old districting plans belatedly or drawn plans, appellants rely again voluntary, court-ordered on the redistricting partisan mid-decade nature of the and its moti- Appellants vation. do not contend that a decennial redis- tricting plan equal representation would violate three or five years population into the decade if the State’s had shifted substantially. they they oper- As must, concede that States legal ate under plans fiction that their are constitution- ally apportioned throughout presumption the decade, a necessary redistricting, accompany- to avoid constant ing instability. Georgia costs and See Ashcroft, U. S. (2003); Reynolds, Appel- 461, 488, n. 2 at S., 377 U. agree plan implemented by using lants a a court in 2001 population enjoys data also the benefit of the so-called legal presumably plans fiction, because belated court-drawn promote important ensuring plan other interests, such as complies rights voting legislation. with the Constitution and appellants’

In pro- view, however, this fiction should not legislature voluntary, vide a safe harbor for a that enacts plan overriding legal plan, mid-decade court-drawn thus “ ” ‘unnecessarily’ creating population variance “when there legal compulsion” Appellant was no to do so. Brief for County p. Travis et particu- in No. 05-254, al. 18. This is larly appellants say, legislature so, when a acts because of an theory appellants’

exclusively partisan Under motivation. enough to condemn improper at the outset seems motive this principle. equal-population For violating map the for the justify appellants cannot that the State reason, believe this population in Plan Daggett variances Karcher the under partisan they product bias and are the 1374Cbecause competitive districts. eliminate all desire to turns not this is a test that noted, District Court As the princi- redistricting equal-population furthers on whether plan justification redrawing ples for but rather on the supra, respect place. Henderson, In that at 776. first question merely appellants’ approach whether restates Legislature permissible redraw the Texas to it was for the districting map. Appellants’ their at- which mirrors answer, solely par- redistricting motivated tack on mid-decennial unsatisfactory reasons we have tisan considerations, already discussed. intentionally legislature

Appellants that the also contend sought manipulate population when it enacted variances finding is, District Court however, Plan 1374C. There no present specific appellants effect, to that no evidence support allegation appel Because this serious of bad faith. legislature’s lants have not demonstrated that the decision equal- to enact Plan constitutes violation of the 1374C subsidiary population requirement, unavailing their we find (ND Ga.) (per Supp. Cox, on F. 2d 1320 reliance Larios v. (2004). curiam), summarily Larios, In aff'd, 542 U. S. Georgia Legislature’s decen District Court reviewed redistricting Repre nial of its State Senate and House of equal- sentatives districts and found deviations from population requirement. The District Court then held objectives partisan interests drafters, of the which included pro along regionalist bias and inconsistent incumbent with justify Supp. 2d, 300 F. tection, did not those deviations. holding The and its examination Larios 1351-1352.. legislature’s only response to motivations relevant were equal-population something appellants violation, an not have addressing political established here. Even motivation justification equal-population as a for an violation, more- give guidance. panel over, Latios does not clear ex- plained it “need resolve the issue of whether or when advantage partisan may justify popula- alone deviations in plans “plainly any tion” because the were unlawful” and partisan up inextricably” motivations were “bound with clearly rejected objectives. other Id., at 1352. disagree

In appellants’ legisla- sum, we view that a ture’s plan decision to a valid, override court-drawn mid- sufficiently suspect give shape decade is to a reliable identifying political gerryman- standard for unconstitutional appellants ders. We conclude that have established no le- gally impermissible political use of classifications. For this they may reason, granted state no claim on which relief be challenge. for their statewide

Ill changes Plan 1374C made to district lines in south and §2 appellants challenge west Texas that as violations of Voting Rights Equal the Act and the Protection Clause of significant changes the Fourteenth Amendment. The most occurred to 23, District which—both before and after redistricting—covers large land area west and to Texas, District which 25, earlier included Houston but now includes strip area, a different a north-south from Austin to the Rio Valley. Grande apparent

After election, the 2002 it became that District increasingly powerful popu- 23 as then drawn had an Latino Republican, lation that threatened oust incumbent Henry redistricting, Bonilla. Before the 2003 the Latino voting-age population share of the citizen 57.5%, was support among dropped Bonilla’s Latinos had with each suc- Supp. Session, cessive 2d, election since 1996. at 488- F. captured only vote, In 489. Bonilla 8% of the Latino this loss Faced with vote. ibid., of the overall and 51.5% protect legislature Bonilla’s support, acted to of voter population by changing incumbency lines—and hence plan begin with, the new divided To the district. mix—of city border, County Laredo, on the Mexican and the Webb County, county’s population base. Webb that formed entirely previously within rested Latino, had which is 94% people plan, nearly were 100,000 new under the 23; District The rest neighboring Id., 28. 489. District shifted into people, county, approximately remained in Dis- 93,000 replace lost, the State the numbers District trict To Repub- comprising largely Anglo, in counties added voters newly In the drawn Id., at 488. area in central Texas. lican voting-age population share of the citizen district, the Latino voting- dropped though the Latino share of the total 46%, age just population Id., at 489. over 50%. remained adjustments changes required course, elsewhere,

These the two dis- a third district between so the inserted State extended all three of District tricts to the east strip long, narrow is a them farther north. New way from McAllen and Mexican-border that winds its of the State and Austin, in the center towns the south away. it seven Id., In between includes 300 miles at 502. split population coun- resides counties, full but 77% of its 77%, this and southern ends. Of ties at the northern Hidalgo County, roughly which includes McAl- half reside in parts County, Travis which includes len, and half are in comprising 25, 55% The Latinos in District Austin. Ibid. mostly voting-age population, are also of the district’s citizen Id., north and south. areas, the two distant divided between opposite Dis- ends of at The Latino communities at the 499. divergent id., interests,” and trict 25 have “needs owing status, education, in socio-economic “differences to. 512; employment, id., at characteristics,” health, and other underlying up purposes The summed District Court change redistricting “The in and west Texas: south Congressional goal increasing District 23 served the dual Republican general protecting seats in and Bonilla’sincum- bency particular, political in with the additional nuance that Bonilla would be majority reelected in district that had a voting age of Latino population—although clearly anot ma- jority voting age population of citizen certainly and not an voting majority.” effective goal creating Id., at The 497. just “[t]o District 25 retrogression was as clear: avoid under § Voting Rights 5” of given voting Act the reduced Latino strength in District Id., at 489.

A question we address is whether Plan 1374C violates § Voting Rights § 2 of the Act. A State violates 2 totality

“if, based on the of circumstances, it is shown political processes that the leading to nomination or elec- political tion in the or State equally subdivision are not open participation by [a group] members racial opportunity that its members have less than other mem- bers participate political proc- electorate to in the ess representatives and to elect of their choice.” 1973(b). U.S. C.

The Court has identified three threshold conditions for es (1) §2 tablishing group violation: the racial is “‘“suffi ciently large geographically compact to constitute a ma ’ (2) jority single-member group district” the racial (3) “‘“politically majority cohesive”’”; “‘“vot[es] sufficiently usually aas bloc to enable . it . . defeat minority’s preferred Grandy, candidate.”’” Johnson v. De (1994) (quoting 512 U. S. Growe, S., 1006-1007 507 U. (in quoting Thornburg Gingles, turn 30, 50-51 478 S.U. (1986))). Gingles requirements. These are the so-called Gingles requirements

If all three are established, the stat- utory “totality text directs us to consider the of circum- stances” to group determine whether members a racial the elector- members of opportunity than do other

have less Grandy, supra, see also Abrams 1011-1012; ate. De (1997). general of the terms The 74, 91 Johnson, 521 U. S. judi- require “totality statutory of circumstances” standard purpose, has re- interpretation. the this Court For cial Report to the 1982 amendments on the to the Senate ferred typically relevant Rights Voting factors Act, which identifies including: claim, a 2 to history voting-related in the State discrimination

“the voting in the political extent to which subdivision; the or racially political is subdivision of the State or elections political sub- polarized; the or extent to which State the voting procedures that practices or division has used opportunity for discrimination enhance the tend to minority against group extent to which . . ; . past minority group dis- the effects of members bear employment, and education, crimination in areas such as ability participate effec- health, hinder their which political process; tively or subtle in the the use overt political campaigns; appeals the extent racial group minority have been elected of the which members Report public jurisdiction. §2 The District Court’s determination whether the re- quirements upheld clearly are satisfied must be unless erro- Gingles, supra, neous. See at 78-79. Where “the ultimate finding misreading govern- dilution” based on “a the ing Grandy, law,” there is however, reversible error. De supra, at 1022.

B Appellants argue changes that the diluted voting rights of Latinos who remain in the district. Specifically, redrawing of lines in District 23 caused the Latino voting-age population drop share of the citizen from recognized 57.5% to 46%. The District Court voting strength Congressional “Latino is, District 23 un- questionably, weakened Session, under Plan 1374C.” Supp. question 2d, F. weakening 497. The is whether this amounts to vote dilution. begin Gingles analysis,

To it is evident that the second Gingles preconditions—cohesion and third among the minor- ity group voting among majority and population— bloc present are in District 23. The District found Court “ra- cially polarized voting” in and Texas, south west and indeed “throughout supra, Session, State.” at 492-493. The polarization especially in District 23 was 92% of severe: La- against tinos voted Bonilla in 2002, while 88% of non-Latinos App. (expert Report voted for him. Table 20 of Allan Voting-Rights Congressional J. Lichtman on Issues in Texas (Nov. (hereinafter 14,2003) Redistricting Report)). Lichtman projected Furthermore, results new District 23 show Anglo voting-age that the majority citizen if often, will always, prevent electing Latinos from the candidate of their supra, choice in Session, the district. For all 496-497. appellants minority reasons, these demonstrated sufficient majority voting cohesion and bloc to meet the second Gingles requirements. third Gingles requires group first factor that a be “suffi-

ciently large geographically compact to constitute a ma- Latinos S., at 50. single-member 478 U. district.”

jority in a majority of the citizen have constituted District 23 could did under and in fact so voting-age population district, in the voting- may possible Though for a citizen it be Plan 1151C. opportunity, Latino age majority electoral to lack real possess opportunity majority electoral 23 did in old District §by protected 2. had not District 23 stated that the District Court

While it opportunity 1151C, under Plan district an effective been “moving Ses- direction.” recognized was in that the district by Latino Supp. Indeed, 2002 the at 489. sion, 2d, 298 F. majority of the 23 won the of choice in District candidate office- for statewide in 13 out of 15 elections district’s votes (Ward, concurring part in and dis- Id., J., holders. at 518 congressional senting race, Bonilla part). in the in And support, prevailed lim- some Latino could not have without legislators changed though ited it was. State specifically they Latinos would vote worried that because Id., at 488. Bonilla out of office. suggested

Furthermore, to the extent the District Court opportunity district in 2002 that District 23 was not a Latino simply prevailed, 488, it was id., 495, see at because Bonilla group win elec- that a does not incorrect. circumstance have not resolve the issue of vote dilution. We tions does equality opportunity, right 2 is of said that “the ultimate of minority-preferred guarantee not a of electoral success Grandy, S., De 512 U. candidates of whatever race.” in Latino voter n. 11. In old District 23 the increase 1014, Supp. registration population, Session, 2d, and overall 298 F. (Ward, part), concurring part dissenting in in J., power voting in each succes- the concomitant rise in Latino near-victory the Latino candidate of election, sive resulting Bonilla incum- 2002, choice in threat to the bency, very to redraw were the reasons that led the State redistricting prevented the im- the district lines. Since majority emergent in District mediate success of the Latino opportunity 23, there was a in real denial of sense of that term. unques-

Plan 13740’sversion 23, contrast, of District “is tionably opportunity not a Latino Id., district.” majority voting-age Latinos, sure, be are bare population only in new District but a hollow sense, for parties agree that the relevant numbers must include §2 citizenship. approach language This fits the because only eligible group’s opportunity voters affect a to elect can- appellants didates. sum, In have established that Latinos opportunity could have had an district District 23 had its they lines not been altered and that do not have one now. Considering Gingles district isolation, three re- quirements argues, are satisfied. The State nonetheless, § obligations it by creating that met its 2 new District 25 as offsetting opportunity an true, course, district. It is drawing “States retain broad discretion in districts to com- §2.” ply with the Hunt, mandate Shaw U. S. (1996)(Shaw II). 917, n. 9 principle though. This limits, has rejected premise The always Court has that a State can up less-than-equal opportunity make for the of some individ- by providing greater opportunity uals to id., others. at See (“The injuries persons 917 vote-dilution suffered these by creating majority-black are not remedied a safe district State”). somewhere else in the As below, set out these con- flicting by allowing concerns are resolved State use majority-minority compensate one district to for the absence only § group of another when the racial in each area had a right and both could not be accommodated. Gingles requirement, enough

to As the first it is not appellants possibility creating majority- show the of a minority district that would include the Latinos in District supra, (rejecting 23. See II, Shaw n. 9 the idea that §2 plaintiff right placed majority- “a has the to be in a shown”). minority district once a of violation the statute is plaintiffs If the inclusion of the would the exclu- necessitate choice. faulted for its cannot be then the State others, sion drawing challenge why, of a the context That possi- requires Gingles condition lines, “the first district existing of reason- bility creating number than the more minority pop- sufficiently large ably compact a districts with Grandy, supra, choice.” De candidates of its to elect ulation at 1008. plan contains found that the current

The District Court reasonably opportunity that seven districts and Latino six Appellant GI Forum compact could not be drawn. districts majority-Latino districts, but plan presented a with seven not reason- were District found these districts Court “disparate ably part they compact, took in because supra, Session, 491-492, and distant communities.” contrary, the to the there was some evidence n. 125. While clearly conflicting evidence was not court’s resolution of the erroneous. though, problem failed

A Court remains, comparable compactness inquiry perform for Plan 1374C a requires comparison Grandy between as drawn. De reasonably proposal “existing challenger’s and the number compact S., sure, at 1008. To be does districts.” U. majority-minority noncompact not forbid the creation of a J., con- Vera, S., 517 U. district. Bush (Kennedy, remedy curring). noncompact however, cannot, district supra, at II, in the a violation elsewhere State. See Shaw (unless compact’ ‘geographically “the district contains population” group, sits, that district of the racial “where ” remedy’ (quot- wrong ‘there neither has been a nor can be a 41)). ing Simply put, cre- Growe, S., 507 U. at State’s § right opportunity a 2 for those without ation of an district provide opportunity to an offers no excuse for its failure §2 right. since there is no those with a And district for §2 reasonably compact, right see to a district that is not noncompact Abrams, a 91-92, 521 U. at the creation of S., compensate dismantling compact district does not for the of a opportunity district. compactness only claims a should be

The Chief Justice analysis, post, (opinion concurring factor in the see at 507 in part, concurring judgment part, dissenting part), approach comports precedents but his neither with our nor § right with the Grandy nature established 2. De expressly Gingles only prong stated that the first looks to “reasonably compact the number of S., districts.” 512 at U. noncompact II, moreover, Shaw refused to consider a § possible remedy district as a a 2 S., violation. 517 U. applied analysis 916. It is true II Shaw this in the con- § using compliance text of a State’s with 2 as a to an defense equal protection challenge, holding but was clear: A § remedy through State cannot 2a violation the creation of noncompact a district. Ibid. II Shaw also cannot be distin- guished based on the relative location the remedial district compared as alleged to the district of the violation. The re- overlap medial district in II Shaw had 20% with the district plaintiffs sought, “[w]e but the Court stated do not think degree incorporation [the this could mean remedial dis- trict] §2 substantially Id., 918; addresses the violation.” Grandy, supra, see also (expressing De doubt about county, idea that even within the same vote dilution in half). county compensated half the be could for in the other overlap substantially major- The here is not as the different, ity of Latinos who were in the old District 23 are still in the longer new opportunity but no have the elect their candidate of choice.

Apart Grandy from its conflict II, with De and Shaw The approach deficiency creating has the Chief Justice’s one-way whereby plaintiffs compactness rule must show but (except, using States need not it seems, when 2 as a defense equal challenge). protection to an ap- Justice Chief §2 pears accept plaintiff, that a violation, make out group part that could form of a racial or show he she must Post, at 505. reasonably compact district. majority in a a up for the noncompact make district cannot however, If, equally true whether this is compact then district, aof lack noncompact district. proposes the plaintiff the State or “six created Plan 1874C stated The District Court Supp. 2d, Gingles Session, 298 F. districts, Latino” reasonably 25 was whether but it failed to decide recognized §2 a 300- there was compact purposes. It 25, and in District gap communities the Latino mile between large gap and interests similarly the needs between making observations, these groups. After at 502. Id., two compactness. any finding about however, it did not make despite con- that, these It instead ruled Id., at 502-504. opportunity effective Latino be an District 25 would cerns, voting strength La- both the combined district because pre- Latino-preferred groups candidate allow a tino would general find- Court’s Ibid. The District vail in elections. finding for the lack of ing cannot substitute of effectiveness compactness, particularly Court because the District on voting by aggregating simply effectiveness measured groups Id., strength of Latinos. at 503-504. of the two satisfy approach, a district would the District Court’s Under long noncompact it as all the mem- was, so 2 matter how no together, group, could control elec- racial added bers of a tion outcomes. compactness pur- for the evaluate

The District Court did drawing predominated pose deciding in the race whether Valley in the Rio Grande lines. The Latinos district “disparate found, are communities Texas, it those Central status, edu- in socio-economic interest,” with “differences Id., employment, health, and other characteristics.” cation, relative smoothness The court’s conclusion that the at 512. compact, despite this made the district of the district lines inapposite combining interest, is communities of of discrete analyzed only equal protec- because the court the issue purposes. equal protection compactness tion In the context, focuses on the contours of district lines to determine whether predominant drawing race was the factor in those lines. (1995). Johnson, See Miller 900, 515 S. 916-917 U. Under § by injury compact- contrast, the is vote so dilution, inquiry ness embraces different considerations. “The first Gingles compactness minority condition refers to the of the population, compactness not to the of the contested district.” concurring); Vera, 517 U. S., at 997 (Kennedy, see also J., (compact- Abrams, dissenting) S., 521 U. at 111 (Breyer, J., equal protection, ness to show a violation of “which concerns §2 shape or boundaries of district, a differs from com- pactness, minority group’s compactness”); which concerns (the § supra, inquiry II, Shaw at 916 under 2 is whether “the (internal minority group geographically compact” quota- omitted)). tion marks §2 precise emerged governing

While no rule has com- pactness, “inquiry should take into account ‘traditional districting principles maintaining such as communities of in- supra, terest and Abrams, traditional boundaries.’” at 92 (quoting (plurality opinion)); Vera, 517 atS.,U. see also (A grab id., at 979 district that “reaches out small and apparently minority reasonably isolated communities” is not compact). recognition of nonracial communities of in- principle may “assum[e] terest reflects the that a State not group they from a alike, voters’ race that ‘think share political prefer same interests, and will the same candidates ” polls.’ supra, (quoting at the Miller, Reno, Shaw v. (1993)). prohibited U. S. In the absence of this assumption, there is no basis believe a district that com- farflung segments disparate group bines two of a racial §2 provides opportunity requires interests or that Gingles contemplates. purpose the first condition “The Voting Rights prevent Act is to discrimination in trans- to foster our the electoral franchise the exercise of longer society race.” fixated on that is no formation to (opinion post, at 511 490; cf. Georgia S., 539 U. v. Ashcroft, J.). important to these do disservice C. We Roberts, people by failing between goals the differences to account for of the same race. recognized the relevant differ-

While the District Court inquiry, performing compactness it failed ences, significance differences under of these account for the regarding findings the District Court’s In these cases the Latino interests of characteristics, needs, and different community the one in and border and near Mexican Legiti- supported and uneontested. around Austin are well yet differing of interest should not be dis- mate communities practical consequence regarded in the interest race. disparate drawing distant, cover two commu- a district to groups will unable to achieve nities is that one or both be political goals. Compactness therefore, about more is, their “style points,” post, (opinion it than at 494 C. Roberts, J.); § ensuring advancing purposes to the ultimate is critical minority groups “opportunity participate equal in the ... political representatives process of their choice.” and to elect 1973(b). (And § style just points, if it about U. S. were C. why plaintiff it is would have difficult to understand claim.) § propose compact to make out a 2 As wit- district poli- know the south and west Texas culture nesses who districting in make it testified, tics Plan 1374C “could thinly Latino-preferred candi- more difficult for financed adequate provide and to dates achieve electoral success responsive representation Session, once elected.” (Elected Supp. from 2d, 502; id., see also officials F. diversity newly- region that the size and “testified configured for the con- districts could make it more difficult Valley in election out- stituents comes”). the Rio to control Grande finding question not the District Court’s We do groups’ voting strength would enable combined prefers Anglos’ them to elect a candidate each to the candi- accept date of choice. We also that in some cases members group example, of a racial in different areas—for rural and urban communities—could share similar interests and there- compact reasonably fore form a if district the areas are in proximity. supra, close Abrams, See at 111-112 (Breyer, dissenting). only J., When, however, the common is index race and the result will be to cause internal friction, the §2 remedy State cannot make this for a violation else- emphasize geographical where. We it enormous dis- separating tance the Austin and Mexican-border communi- coupled disparate ties, with the needs and interests of these populations—not either factor alone—that renders District noncompact purposes. possibil- for The mathematical ity of compact. a racial not bloc does make a district reasonably compact,

Since District 25 is not Plan 1374C only reasonably compact contains opportunity five Latino districts. Plan 1151C, contrast, created six such dis- tricts. The District find, Court did not and the State does any opportunity contend, that of the Latino districts noncompact. Contrary Plan 1151C are to The Chief suggestion, post, pop- at 501,moreover, the Latino Justice’s part, geo- ulation old District 23 is, the most closer graphic proximity population than is the Latino in new Dis- importantly, trict 25. More there has been no contention pockets population that different of the in Latino old District divergent 23 have needs and interests, that, and it is clear as population split set below, out the Latino of District 23 was apart particularly becoming because it was so cohesive. political The Latinos in District 23 had found an efficacious identity, entirely while this would an be new and difficult undertaking given geo- for the Latinos in District their graphic and other differences.

Appellants Gingles require- have thus satisfied all three ments as to and the creation of new District 25 remedy problem. does not the

c totality circumstances, and proceed the now to We percent- comparing inquiry, proportionality first to the opportunity districts are Latino age that total districts voting-age population. of the citizen share the Latino with proportionality is “a relevant Grandy, explained in De As It S., at 1000. totality 512 U. of circumstances.” in the fact in for States com- harbor” act as a “safe not, however, does §2. id., at 1025 also plying Id., 1017-1018; see at always (O’Connor, (proportionality rele- concurring) “is J., determining never itself dilution, but is vote in vant evidence concurring in J., dispositive”); id., at 1027-1028 (Kennedy, (proportionality has “some part concurring judgment) in propor- emphasis upon though “placing undue relevance,” Voting underlying defeating goals tionality risks Act”). harbor, proportionality act as safe Rights If could suspect highly unexplored premise va- ratify “an it would rights lidity: any given voting jurisdiction . the, . . in § may against minority traded off under be some voters minority rights class.” members of the same of other II, Id., S., Shaw 517 U. 916-918. 1019; see also proportionality should be decided The State contends that say requires regional appellants their while claim basis, on Grandy, analysis. In De to conduct a statewide Court plaintiffs “passed up opportunity their to frame dilu- S., Based terms.” 512 U. at 1022. tion claim statewide proper parties’ apparent agreement frame of that the on the County area, the Court used reference was the Dade proportionality. In these Id., at 1022-1023. area to decide “injury appellants allege an to Afri- cases, hand, on the other throughout Hispanic the State.” can American and voters (ED Tex.), pp. 1-2; Complaint see Action 03C-356 Civ. No. Complaint 2:03-354 Action No. also First Amended Civ. (ED Tex.), Complaint pp. 1, 5, 7; Plaintiff’s First Amended (ED Tex.), pp. 4-5. The etc. in Civ. Action No. 2:03cv354 expressly the state- moreover, considered Court, proportionality argument. question wide result, As a proper geographic scope assessing proportionality presents now itself. propor-

We conclude the answer these cases is to look at tionality contends statewide. State that the seven dis- correctly tricts in south and west Texas delimit the bound- proportionality only aries for is because that area of the reasonably compact opportunity where State Latino districts argument, be can drawn. This however, misunderstands proportionality. already the role of have determined, We Gingles reasonably under the factor, first that another com- pact question Latino district can be drawn. The now is whether the absence that additional district constitutes “ impermissible inquiry requires vote dilution. This an ‘in- ” tensely appraisal’ challenged Gingles, local district. (quoting Rogers Lodge, S., 478 U. 458 U. S.

(1982)); (O’Connor, Gingles, see also at J., concur- supra, ring judgment). appraisal necessary A locai because right belong to an undiluted vote does not to the “minor- ity group,” as a but rather to “its individual members.” supra, may II, Shaw at 917. And a State not trade off the rights group against rights of some members of racial group. of other Grandy, supra, members of that See De supra, question 1019; II, Shaw at 916-918. The is therefore line-drawing challenged not “whether in the area as a whole minority voting strength,” post, (opinion dilutes J.), line-drawing voting but whether dilutes the Roberts, C. strength of the Latinos District 23. proportionality displace ap-

The role of is not to this local praisal rights or to allow the off State to trade of some against rights provides it Instead, of others. some evi- political processes leading dence of whether “the to nomina- political or tion election in the State or are not subdivision 1973(b). equally open participation.” For U. S. C. purpose, arbitrary. this the State’s seven-district area is It just easily eight Ap- as have six could included or districts. on a based alleged dilution vote

pellants have statewide opportunities of Latinos plan, so the electoral statewide lack of electoral bear on whether the State can across consequence of opportunity District 23 Latinos in simply consequence of redrawing lines of or Plan 1374C’s racial in with some, lose some” a State “win the inevitable in voting. the total- of the other factors Indeed, several bloc ity with reference have been characterized of circumstances (listing Gingles, supra, at 44-45 a whole. to the as State factors). presence Particularly given the of Report Senate submergence possible of racially polarized voting—and the votes—throughout minority use the it makes sense to Texas, assessing proportionality. in entire State congressional Looking are districts. statewide, there reasonably compact opportunity districts Latino five up roughly while Latinos make total, 16% of amount to (Appellant voting-age population. GI 22% Texas’ citizen of American Com claims, on from the 2004 Forum based data Survey munity that Latinos con Bureau, Census of U. S. population, voting-age 24.5% the statewide citizen stitute of figure of this was neither available at time but as accept redistricting, presented Court, to the District we nor 22%.) finding are, therefore, Latinos the District Court’s representation. shy proportional is, There two districts Grandy, “magic parameter,” S., at no De U. course, “rough proportionality,” id., must 1017, 1023, n. not decide whether allow for deviations. We need some §2 weighs in in cases favor of two-district deficit these disproportionality were if 1374C’s violation. Even Plan insubstantial, deemed that consideration would overcome in the other of vote dilution for Latinos District evidence assigned proportionality degree probative “[T]he value may vary facts id., and the other facts,” with other is a 2 eases convince us that there violation. these poised elect their candi- 23’sLatino voters were They becoming politically active, more date of choice. were Spanish-surnamed a marked and continuous rise in registration. voter Report, App. See Lichtman 142-143. In successive voting against elections Latinos were Bonilla greater they numbers, and in 2002 almost ousted him. County particular, Webb population, with a 94% Latino spurred the dramatically incumbent’s near defeat with in- creased turnout in 2002. See 2004 Almanac 1579. In re- sponse growing participation to the that threatened Bonilla’s incumbency, the State divided the cohesive Latino commu- nity County, moving Webb about 100,000Latinos to Dis- already trict 28, which was opportunity a Latino district, and leaving they the rest in a district hope where now have little electing their candidate of choice. changes

The to District progress 23 undermined the of a group subject racial significant that has been voting- to related becoming discrimination and increasingly that was politically active and Grandy, supra, cohesive. Cf. De at §2 (finding no violation where “the State’s scheme would tendency thwart the historical Hispanics, to exclude encourage it”); perpetuate Regester, or White v. 412 U. S. (1973) (looking 755, 769 totality in the of the circumstances proposed to whether districting “remedy would the ef- past present fects of against discrimination Mexican- bring community Americans, and to into the full stream political county life encouraging and State their registration, (ci- voting, political further and other activities” omitted)). quotation tation and internal marks The District recognized long history Court “the against of discrimination Latinos and Supp. Blacks in Texas,” Session, 2d, F. at 473, and other history courts have elaborated on this respect processes: to electoral long, history

“Texas has a well-documented of discrimi- upon nation rights that has touched of African- Hispanics register, par- Americans and to vote, to or to ticipate process. otherwise in the electoral Devices poll primary system, such as the tax, an all-white registration periods are an unfor- time voter restrictive rights history. minority voting part of State’s this tunate elec- history in the Texas discrimination of official process—stretching back Reconstruction—led tion jurisdiction under as a covered of the State the inclusion Rights Voting to the 5 in the 1975 amendments Section jurisdiction, the a covered Since Texas became Act. objec- interposed frequently Department has of Justice against its Vera v. the State and subdivisions.” tions 1994) (cita- (SD Supp. Tex. Richards, 861 F. omitted). tions opinion); (plurality S., 981-982 Re- Vera, 517 U. at

See also supra, “political, gester, social, In addition, at 767-769. legacy past Latinos in and economic discrimination” ability may supra, well their Session, “hinder Texas, process,” Gingles, effectively political participate in the factors). (citing Report Senate S., 478 U. diminishing

Against background, elec- this the Latinos’ support he “unre- Bonilla indicates their belief was toral for particularized sponsive the members of the to the needs of (same). minority group.” Ibid. In essence the State took away opportunity Latinos were about the Latinos’ because the of intentional discrimi- to exercise it. This bears mark give equal protection violation. nation that could rise to an finding accept the we the District Court’s State’s Even if primarily political, racial, reasons, for not action was taken redrawing supra, the lines was Session, 508, at the district only damaging in District The to the Latinos State Latinos’ efforts but also made fruitless the mobilization becoming politi- against were most acted those Latinos who through cally dividing line the active, them with a district middle of Laredo. taking out of District the for Latinos

Furthermore, reason protect Congress- according Court, to 23, to the District was increasingly voting constituency that was man Bonilla from a incumbency protec- against The has noted him. Court legitimate districting, can tion be a factor in see Karcher v. Daggett, experience S., 462 U. at but that incum- 740, teaches bency protection can take them forms, various not all of in justification the interests the If constituents. for in- cumbency protection keep constituency is to intact so the promises officeholder is accountable for made broken, or then protection seems to accord with concern for the voters. incumbency protection If, on the hand, other means exclud- ing simply they some voters from the district are because likely against change to vote to officeholder, benefit By purposely redrawing officeholder, not the voters. opposed legislature lines around Bonilla, those who the state policy, validity took the latter course. This whatever its in politics, justify the realm of cannot the effect on Latino vot- Gingles, supra, (citing Report ers. See Senate factor policy underlying” of whether “the the State’s “is ten- action uous”). policy suspect The becomes even more when consid- light suggesting ered of evidence that the State intention- ally voting-age drew District 23 to have a nominal Latino (without majority voting-age majority) political a citizen supra, Session, reasons. use 497. This of race create weighs appel- the facade of a Latino district also favor lants’ claim.

Contrary suggestion that we are Chief Justice’s reducing flexibility complying the State’s needed with post, problem entirely see here is of the State’s making. apart op- own The State chose to break a Latino portunity protect congressman district the incumbent growing politi- from the dissatisfaction of the cohesive and cally community active Latino in the district. The State purported compensate by creating then for this harm an entirely groups Latinos, new district that combined two apart, represent hundreds of miles different communi- § ties of 2, interest. Under must be held account- State denying opportu- equal able the effect of choices in these Notwithstanding facts, these nity Latino voters. great emphasis places on the District Court’s Chief Justice Latino ‘a effective 25 is more that “new District statement Congressional District 23 had opportunity than district Supp. 2d, at (quoting 298 F. Session, Post, at 493 been.’” 503). expressed con- assuming in the statement, this Even qualifies testimony, summarizing as a find- witnesses’ text points it of minimal ing make Court, of the District two previously District Court noted, the First, as relevance. accounting without of District 25 measured the effectiveness compactness prob- consequences of its for the detrimental only to how effec- referred Second, lems. the District Court operate would been,” not to how it tive District 23 “had po- today, given growing significant Latino distinction power litical in the district. totality foregoing, of the circumstances

Based on the §2 assuming Plan 1374C violation. Even demonstrates provides something proportional representation for close to politics troubling race—and the re- Latinos, blend of its beginning sulting group to achieve of a that was vote dilution § goal overcoming prior 2’s electoral discrimination—can- not be sustained.

D redrawing 2 in its Because we hold Plan 1374C violates appellants’ claims that the do not address 23, District we drawing politics of race and in that district violates use equal protection. need not First Amendment and We also equal protection appellants’ in confront claim of violation an drawing south and west of District 25. The districts in remedy the in Texas will have to be redrawn to violation pass legitimacy on the District and we have no cause to changed. Session, 298 F. of a must See district be (Ward, dissenting concurring part Supp. 2d, J., compen- part). particular, was formed to opportunity as dis- sate for the loss of District 23 a Latino remain trict, is no to believe District will and there reason

443 compli- brought in its current once 23 is into form §2. ance with We vacate the therefore District Court’s judgment as to these claims.

IV Appellants changes challenge also to district lines in alleging they the Dallas area, African-American vot- dilute §2 ing strength Rights Voting in violation of the Act. Specifically,appellants contend an that African-American mi- nority effectively controlled District 24 under Plan 1151C, § and that 2 entitles them to this district.

Before Plan enacted, 1374C was District 24 had elected Anglo Congress every Democrat Martin Frost to election Anglos largest Id., since 1978. at 481-482. were the racial group in voting-age the district, with of the 49.8% citizen population, largest third were with Latinos, 20.8%. App. State’s 57, Exh. were African-Americans second-largest group, voting-age with of the citizen 25.7% population, they consistently ibid., and voted for Frost. The plan racially apart assigning district, new broke this diverse pieces its into several other districts.

Accepting majority be a African-Americans would not single-member they of the district that African- seek, and cohesively Hispanics, Americans do not vote Session, supra, appellants at nonetheless contend African- Americans had effective control District 24. As the purposes has before, Court done several times we assume litigation possible of this it to state a claim for a group up population. racial that makes than 50% less Grandy, De See 512 U. S., 1009; Quilter, Voinovich v. (1993); Gingles, S., 46-47, U. S. U. n. 12. assumption Gingles prong Even on the first can ac that the appellants they claim, commodate this show however, must sufficiently large minority constitute “a to elect their can didate of choice with the assistance of cross-over votes.” deleted). supra, (emphasis Voinovich, population can relatively small African-American The its according appellants, because standard, this meet in the Democratic the voters 64% of constituted members Anglos and Latinos primary. significant of number Since argument general election, the in the for the Democrat voted primary translated goes, control of the African-American election. control of entire into effective African- however, that found, Court of choice in elect their candidate could not Americans testimony finding, support primary. it relied on In of this Anglo Democrat, the fact drawn for an that the district was any primary opposition in his elections Frost had no of that demographic began, incumbency and District 24’s since his similarity African-American district where an to another Anglo. against Session, failed when he ran an candidate Supp. Anglo short, that Democrats F. at 483-484. “In 2d, according to “the Court, the District is,” control this district Id., at rational conclusion.” most finding. Appellants this fail demonstrate clear error in primary any in Dis- In the absence contested Democratic years, no benchmark exists trict over the last 20 obvious deciding elect their African-Americans could whether The fact that African-Americans voted candidate of choice. primary sig- general for Frost—in the and elections—could pri- nify a contested he their candidate choice. Without (assum- mary, interpreted it also to show however, could be ing voting) Anglos in racial that and Latinos would vote bloc primary greater in an African- numbers if the Democratic especially given run, of choice were to American candidate open system. primary trial The District Court heard Texas’ testimony support explanations, can- both and we that would testimony say crediting that endorsed that it erred (testi- Compare App. interpretation. 242-243 the latter County mony that Frost of Tarrant Precinct Administrator the African-American commu- is the “favored candidate of challenges unopposed primary nity” gone he has [the community’s] because he “serves African-American in- terests”) (testimony Congresswoman id., at 262-264 Eddie Bernice Johnson that District was drawn for an (Martin Anglo particular) Democrat Frost, in in 1991 (testi- splitting minority community), id., at 277-280 mony Representative of State Ron Wilson African- ability Americans did not preferred have the their elect particularly candidate, an African-American candidate, Anglo District 24 and that Democrats in such “influence [districts” fully responsive were not to the needs community). African-American analysis by appellants’ expert

The submitted own was also inconsistent. Of the three for elections statewide office he examined, in District 24 the African-American candidate of choice would have won one, one, lost and in the third split. the Report, African-American vote was See Lichtman id., 75-76, at 92-96; State’s Exh. Civ. Action (ED Tex.), p. No. 2:03-CV-354 138; State’s 21 in Exh. Civ. Tex.). (ED Action No. 2:03-CV-354 The District Court committed rejecting questionable no clear error in this show- ing ability that African-Americans have the to elect their candidate of choice in favor of other evidence that an prevail. African-American of candidate choice would not (1985) City, See Anderson v. Bessemer 470 U. 564, S. (“Where permissible there are two views of the evidence, clearly factfinder’s choice between them cannot be erroneous”).

That African-Americans had district, influence in the Ses- supra, §2 sion, at 485, does not suffice to state a claim in opportunity representatives these cases. The “to elect of § 1973(b), their requires choice,” U. C. S. more than the ability to influence the outcome between candidates, some none of whom is their candidate of There no choice. is doubt preferred Republi- African-Americans Martin Frost to the opposed cans who him. The fact that African-Americans preferred him Frost to some not, others does make however, ability Accordingly, to aid of choice.

their candidate 24 an old District make the does not Frost’s election §2. purposes opportunity of district African-American §2 it protect influence, interpreted this kind to If were every virtually unnecessarily redis- race into infuse would questions. tricting, raising See Geor- constitutional serious concurring). gia J., S., 539 U. v. Ashcroft, (Kennedy, Georgia by pointing respond Appellants Ashcroft, presence districts of influence held that the the Court where §5 Voting Rights under relevant consideration a § opportu- inquiry however, under concerns 2, Act. nity representatives C. choice,” of their U. S. “to elect 1973(b), § change purpose or effect not has whether § abridging right “denying vote,” 1973c. or Ashcroft recognized tests, S., these 539 U. the differences between groups ability of racial to elect and concluded that the 478, only id., at factor under candidates their choice is one minority presence “where vot- while the of districts 480. So play may but ers of choice can be able elect candidate process” is role in the electoral substantial, decisive, if not § analysis, id., lack of such dis- relevant to the 5 §2 The failure to create tricts cannot establish a violation. an in thus not run of influence district these cases does afoul § Voting Rights the Act. district-specific political gerry-

Appellants do raise mandering against were Even if the claim claim challenge, cognizable part appellants’ it as statewide ap- unpersuasive. claim, be as for the statewide would Just pellants any partisan fairness. lack reliable measure would representational suggests the on burden Justice Stevens rights by comparing the of Demo- can be measured success in the new districts crats in old District with their success (opinion concurring they occupy. in Post, now at 475-476 part dissenting part). reason, however, in is no and There why any special In the old claim to fairness. district has redistricting plan as 24, no than old fact, old District less the partisan Session, a whole, was formed for reasons. See Supp. App. E 484; Balderas, F. see State- 2d, also Juris. Furthermore, ment conclusion 208a. Justice Stevens’ § complied Rights Voting that the has not with of the State post, 478-481—effectively overruling Attorney Act, the argument, opinion briefing, General lower without or a court determining problem on the issue—does not solve partisan impermissible reliable measure of effect.

[*] ^{[*] [*]} reject redistricting challenge We statewide Texas’ political gerrymander as an unconstitutional chal- and the lenge redistricting to the in Dallas area as a violation of § Voting Rights redrawing 2 of the Act. We do hold that the Voting Rights of lines in District 23 2 of violates Act. judgment part, of the District Court affirmed in re- part, part, in versed and in vacated and the cases are re- proceedings. manded for further

It is so ordered. joins whom as Breyer Justice Stevens, Justice concurring part dissenting part. to Parts I II, and perfectly judicially This is a suit which it is clear that manageable standards enable us to of a decide merits challenge political gerrymander. Applying statewide to a explain why wholly unnecessary such I standards, shall replacement by plan three-judge neutral fashioned (ED court in Texas, Balderas v. Civ. Action No. 6:01CV158 2001) curiam) (Plan (per Tex., Nov. 1151C or Balderas Plan) with Plan 1374C,which creates districts with less com- pact shapes, Voting Rights violates the Act of fragments purely partisan communities of interest—all purposes—violated gov- duty the State’s constitutional impartially. Legislature ern Prior misconduct the Texas Accordingly, justifies neither nor excuses that violation. join I23, while I the to Court’s decision invalidate District 448 entirely direct invalid and that Plan is

would hold 1374C Moreover, as Plan to reinstate 1151C. the District Court plan explain, the were if remainder of I even the shall be cracking 24 would still of Balderas District valid, the unconstitutional.

I existing is advan- of district boundaries The maintenance Changes, tageous course, of and candidates. to both voters every equalize population the census to must be made after changes of a in the size of to accommodate each district or delegation. Similarly, changes congressional must State’s districting plan response finding vio- a that be made §§ § Voting Rights 1973, 42Act, lates 2 the U. S. C. or voting, orderly campaigning and 1973c. But interests maintaining repre- between as well as in communication importance underscore the constituents, sentatives their any requiring district bound- decision redraw any aries—like state action that affects electoral other very legitimate gov- process—must, least, serve some purpose. g., See, Takushi, e. Burdick 504 U. S. ernmental v. (1992); joined J., 428, id., 448-450 (Kennedy, dissenting). purely partisan A JJ., Blackmun and Stevens, voting strength of ra- desire “to minimize or cancel out voting political population,” cial Fortson or elements (1965), Dorsey, purpose. not such a U. S. strength Demo- to minimize the of Texas Because desire adoption 1374C, crats motivation for the of Plan was sole (ED Perry, Supp. Tex. 451, 470, see Session v. 298 F. 2d 2004) curiam), plan (per cannot withstand constitu- scrutiny. tional districting map replaced, 1151C, 1374C Plan Plan may only manifestly legitimately fair it neutral,

was not history political as Texas’ be- be described a milestone in put long history cause it an of Democratic misuse end power theWar, in that For decades after the State. Civil political party associated with the former Commander

449 Army support Chief of the Union attracted the of former “carpetbaggers,” signifi slaves and handful of but had no political cant influence in Texas. The Democrats maintained political by power excluding partici their black voters from pating primary g., Allwright, in elections, see, e. Smith v. (1944),by 321 management 649, U. S. 656-661 the artful g., Regester, multimember electoral schemes, see, e. White v. (1973), recently, 412 by outrage 755, U. and, 765-770 most S. ously partisan gerrymandering, (opinion see ante, at 410-411 (1996) J.); of Kennedy, Vera, Bush v. 517 952, U. S. 987-990 (appendixes plurality opinion), in id., at 1042- 1005-1007, 1045 dissenting). Unfortunately, J., some of (Stevens, unique these tactics are appor to Texas Democrats; the they tionment only scheme devised in is exam 1990’s one ple excessively gerrymandered districting plans parties governing with control of their States’ bodies have implemented years. g., in recent See, Larios, e. 542 Cox (2004) joined by U. S. 947, 947-950 (STEVENS, J., J., Breyer, (Democratic concurring) gerrymander Georgia); in Vieth v. (2004) (plurality 541 opinion); Jubelirer, U. 272 id., S. dissenting) (Republican 342 gerrymander J., in (Stevens, (1983) Pennsylvania); Daggett, Karcher v. 462 744 U. S. (Democratic gerrymander Jersey); in New Badham v. Eu, (ND 1988), Supp. summarily F. 664, aff'd, Cal. (1989)(Democratic California). gerrymander U. S. Despite Party’s history the Texas Democratic sordid manipulating process strangle- perpetuate the electoral its political power, Republican Party managed hold on the Texas majority party become the State’s fi- If, after nally achieving political strength Republicans Texas, adopted plan excessively had a new order remove the partisan gerrymander Democratic the deci- 1990’s, unquestionably supported by sion to sodo would have been justification. happened. a neutral But not what In- following stead, as the discussion of the relevant events that following of the 2000 census transpired the release in Texas Republicans abandoned neutral demonstrates, Texas data manipulating map purpose dis- apportionment for the sole advantage and their electoral to maximize trict boundaries stranglehold impermissible politi- on their own thus create power. cal many Republicans the

By had overcome of 2001, Texas designed Democrats’ to freeze the tactics aforementioned party, Republicans con- and status as the State’s dominant Democrats, governorship the and the State Senate. trolled majority the constitute a of State however, to continued year, re- Representatives. of that the of In March House as a that, the revealed result sults of 2000 decennial census population growth, to entitled two additional of Texas was its bring- Representatives, in the of seats United House States ing congressional delegation 32. the of the Texas to size required equipopulous dis- therefore, to draw 32 Texas, was representation to to for and com- tricts account its additional ply one-person, §2, of Article I, with the one-vote mandate g., Karcher, law, e. Texas the see, 462 U. S. Under Legislature required to these new districts. Texas was draw Supp. 2d, Session, See 298 F. at 457-458. Legislature, Republican between a Sen- Texas divided agreement House,

ate and a Democratic did not reach on regular legislative congressional map session, new the Perry special declined to call a session. and Governor Rick Litigation failed to result in a in the Texas state courts also plan, Supreme map as the Texas vacated the created Court by Perry judge. 67 S. 3d Rio, a state trial See Del W. (2001). three-judge 85 left This Federal District Court “ obliga- the Eastern District of Texas with ‘the unwelcome ” legislature’s performing tion of in the stead.’ Balderas v. (Nov. 2001) (per Texas, 14, Action cu- Civ. No. 6:01CV158 riam), App. p. 05-276, E to in No. 202a Juris. Statement (hereinafter Statement) App. (quoting Connor v. Juris. (1977)). Finch, 431 415 U. S. protracted proceedings,

After which testi- included the mony impartial expert representatives anof as well as of groups supporting plans, pre- interested the different court pared plan. primary responsi- own its “Conscious the bility congressional drawing given political districts government, ‘und[o] branches and hesitant to work political party one three-judge for the benefit of another,’ sought apply ‘only Balderas court “neutral” redistrict- ing drawing standards’ when Ante, Plan 1151C.” J.) (opinion (quoting Perry, Henderson v. Kennedy, (ED 2005)). Supp. F. 2d Tex. ex- As court plained, map it started with a Texas, blank drew in existing protected Voting Rights districts Act, located population growth new Districts and 32 where the produced applied them had occurred, and then neu- “compactness, tral contiguity, respecting criteria of county municipal App. boundaries.” to Juris. State- ment pur- id., 205a. at See The 206a-209a. District Court posely independ- “eschewed an effort to treat old lines as an ent plan locator,” and concluded that its had done much “to ‘ripples’ plan end of most the below-the-surface of the 1991 myriad example, and the of submissions before us. For patently shapes irrational of Districts 5 and 6 1991 under the plan, widely gerry- as the cited most extreme but successful mandering country, in the no Id., are more.” 207a-208a. process,

At the conclusion of this that court believed map “likely congres- it produce had fashioned a that was delegation roughly proportional party voting sional to the breakdown across the Id., Indeed, state.” at 209a. reflect- ing strength growing Party, Republican of the Dis- plan, party trict Court’s Plan 1151C, offered that an advan- tage congressional in 20 of the Session, 32 seats. 298 See 1151C). Supp. (describing 2d, F. Plan ex- State’s pert litigation in this testified that was the Balderas Plan “[m]aybe not in of biased favor Democrats and that was it slightly” (deposi- Republicans. App. biased in favor of Ph.D.). Although groups of Gaddie, of Keith

tion Ronald appeal, neither challenged Plan on 1151C Latino voters filed a political party of Texas major and the State so, did judg- asking District Court’s to affirm the this Court motion (2002). Texas, v. 536 U. S. did, we Balderas ment, which Republicans congressional however, elections, In the 2002 advantage capitalize the Bal- that on the were able to provided of Democratic them. A number Plan had deras ticket-splitters able to attract the votes incumbents were (individuals party in from one who voted for candidates party from different for a candidate statewide elections and elections), congressional in some won elections and thus Republicans Republicans. a result, favored As districts that only the Balderas court.1 drawn carried districts they Republicans as well as had did not do While Repre- hoped in elections for the United States House Repre- they gains in the Texas House sentatives, made body. majority This and won seats sentatives gave Republicans of the state Texas control over both bodies legislature, for the first mansion, as well as the Governor’s time since Reconstruction. legislative executive control of the

With full State’s Republicans the state’s branches, the “decided to redraw 1It was that later caused the District apparently these electoral results 1151C to leave the practical Court state that “the effect” of Plan “was Party ‘legal’ plan.” gerrymander largely place 1991 Democratic as a id., (ED 2005); Perry, Henderson Tex. see Supp. 399 F. 2d hardly n. 52. demon ticket-splitting But the existence of voters Instead, Plan 1151C biased in of Democrats. as strates was favor above, in that Plan expert litigation noted even the State’s this concluded was, anything, 1151C in favor Nor do cir Republicans. if biased of Plan 1151C that surrounding replacement suggest cumstances Plan was unfair legislature by misimpression was motivated a 1151C equitable should with a more Republicans, accordingly replaced and be Rather, below, clear that the sole motiva map. as discussed in detail it is Republican tion for new to maximize enacting districting map a was advantage.

congressional solely purpose seizing districts for the be- and tween five seven seats from Democratic incumbents.” (internal Supp. quotation Session, 298 F. 2d, marks omitted). According to former Lieutenant Bill Governor highly regarded Republican a Ratliff, member of State “political gain Republicans Senate, for the was 110% of the ” motivation for Plan,... it was 'the entire motivation.’ (quoting transcript). Id., at 473 Or, trial as the District stated litigation, Court in the first of its two decisions in this “[tjhere question single-minded purpose is little but that the Legislature enacting gain Texas in Plan was to 1374C partisan advantage.” Id., ante, at 470. See also J.) (opinion (quoting of Kennedy, District Court’s conclu- sion). argued as Indeed, the State itself before the District overwhelming Court: “The par- evidence demonstrated that gain motivating tisan was the force behind the decision to redistrict in 2003.” State Defendants’ Post-Trial Brief in (ED (hereinafter Tex.), p. No. 2:03-CV-354 Post- State Brief). Trial political gain

This desire for led to a series of dramatic Republicans confrontations between Democrats, ul- timately adoption plan resulted in the of a that violated the Voting Rights legislature pass map Act. did not a new regular part in session, because Democratic House members absented themselves and thus denied the body quorum. Perry special Governor then called a ses- up congressional redistricting—the step sion to take same he had declined to take in 2001 after the release of the decen- figures, Republicans majority nial census when lacked During special ap- the House. the first session, the House proved congressional map, a new longstand- but the Senate’s ing requiring body support tradition two-thirds measure before the full Senate will consider it allowed Dem- plan. ocrats to block the

Lieutenant Governor Dewhurst then that he announced suspend operation any would two-thirds rule future redistricting. congressional considering special session special Democrats Senate session, a Nonetheless, in second by- districting map passage of a new again prevented the quorum. depriving of a leaving the Senate State and Texas, Governor returned Democrat a lone Senate When congres- special consider Perry session to a third called redistricting. sional and the

During special Senate session, the State that third apparently maps passed have that would House State they Rights Voting any Act because avoided violation essentially preserved Dis- Balderas alia, have, would inter and majority-Latino Texas, district southwest trict majority-minority in the district District Balderas constituted area, where black voters Dallas-Fort Worth primary significant majority and of voters in the Democratic general usually in the elec- of choice elected their candidate redistricting legisla- King, Representative Phil tion. pro- previously sponsor had House, tion’s chief in the Texas lawyers fragmenting reviewed posed 24, but, after District redrawing King map, expressed concern Voting Rights new might Act, and he drafted a violate the largely unchanged. map that left District seeking the House to reconcile the conferees Nonetheless, goal map part plans produced a as of its that, and Senate political advantage, maximizing Republican significantly they in the both 23 and 24 as had existed altered Districts Balderas District 23 was extended north Balderas Plan. roughly people predominately 100,00b take in new who were split- Anglo Republican, west, and moved thus and was also pushing ting County city Laredo, and Webb and the people predominately roughly were Latino 100,000 who Supp. adjacent F. Session, Democratic into an district. previously resided 2d, at Black voters who 488-489. fragmented districts, into new Balderas District 24 were five which, Anglo Republican. predominately 4s See each of App. Representative King testified at trial 104-106. though cracking was even district cracked the “ ” path avoiding was not 'the of least resistance’ in terms of Voting Rights liability leaving Act because Balderas District “accomplish political objectives.” 24 intact would not our (quoting transcript). map State Post-Trial Brief 51-52 This ultimately was enacted into law as Plan 1374C.

The overall effect of Plan was to shift 1374C more than eight split million Texans into new districts, and more pieces counties into more than the Balderas Plan. More- average, over, the 32 districts in Plan 1374C on are, much compact less under either of two standard measures than counterparts their had been under the Balderas Plan. See Gaddie).2 App. (expert report 177-178 of Professor parties Numerous filed challenging suit in federal court grounds Plan 1374C on the Voting that it violated 2 of the Rights- Act and parti- that it constituted an unconstitutional gerrymander. three-judge san panel—two A of whom also court—rejected were members of the Balderas these chal- §2 lenges, Judge partial over Ward’s on dissent the claims. Supp. Session, See Responding plaintiffs’ 298 F. 2d 451. appeals, light we remanded for Vieth, reconsideration in of (2004). 541 U. S. 267. See 543 U. S. characteristically thoughtful opinion

In a by Judge written Higginbotham, again rejected the District Court all chal- lenges constitutionality to of Plan 1374C. See Hender- Supp. correctly son, F. 2d 756. It found that the Consti- prohibit legislature tution redrawing does not a state from congressional cycle, districts in the middle of a census see correctly recognized id., at 766, and it also that this Court yet judging validity has not endorsed clear standards for partisan gerrymanders, of id., see at 760-762. Because

2These two standard of compactness measures are the perimeter-to- score, area which compares the length perimeter relative a dis area, score, trict to its smallest circle which compares the ratio space in the space district to the the smallest circle could encom pass the App. district. original reconsideration decision, and its

District Court’s opinions are light Vieth, several the case in saga Balderas, began it chapters in the successive opinion from that quote comment appropriate to this final is pre- question that is now addressing principal before court concluded: The Balderas sented. directly implicit we

“Finally, in all that what is to state purely partisan political gerrymandering, a have said: drawing a inappropriate for a federal court exercise, map. redistricting the hands of congressional Even at a body, political gerrymandering is much legislative a majority revenge by the is exacted in which bloodfeud, political against arena, have left it to the its rival. We wisely our do so because as we must should. We and gerrymandering see is limited and not because we role power that, of at its what it is: an abuse as other than serving voters, distrust of core, evinces a fundamental expense political parties at the of the self-interest of the good.” App. public 209a-210a to Statement Juris. omitted). (footnote

II appeal is unique question in this of law that is raised previously That nar- has not addressed. one that the Court question for Texas to is it was unconstitutional row whether replace districting plan decade, “in the of a a lawful middle advantage.” maximizing purpose partisan for the sole of question p. is both 05-276, i. This Juris. Statement No. question pre- principal simpler than, from, different and “ judicially discoverable Vieth, sented in in which ‘lack plurality manageable prevented the from standards’” challenge political deciding the merits of statewide gerrymander. S., 541 U. at 277-278. every political-gerrymandering points out, “in

As the State on the considered, the has been claim the has focus Court map map in the first on the to create itself, not decision place.” Appellees map Brief for State 33. In defense of the itself, rather than the basic decision whether to draw the map place, in the first the State notes that Plan 1374C’sdis- frequently county trict borders follow lines other neutral criteria. At what the State describes as the relevant “level granularity,” correctly points appellants the State out that attempted argue have not every even district line solely partisan gain. was motivated Ibid. See also J.) (opinion ante, at 417 (noting “partisan of Kennedy, 1374C). guide every aims did not line” in Plan Indeed, “granular” multitude during decisions that are made re- districting part why plurality was the Vieth concluded, in challenge context of redistricting plan statewide to a promulgated response legal obligation to a to redistrict, manageable that there are govern no standards whether predominant underlying motivation the entire redistrict- ing map partisan. was See 541 S., id., U. at 285. But see dissenting) (arguing judicially J., that there are (Breyer, manageable districting standards to assess statewide chal- lenges plan response legal even when a enacted to a redistrict). obligation to question presented

Unlike Vieth, the narrow the state challenge litigation wide in this is whether the State’s deci map place, sion to draw the in the first it when was under legal obligation no permissible. so, to do was It is undeni identifying making able that the motive for that basic deci readily manageable judicial sion ais task. See Gomillion (1960) Lightfoot, (noting v. plaintiffs’ 364 U. S. that allegations, by if true, would establish circumstantial evi practical dence purposes “tantamount for all to a mathe redistricting legislation matical demonstration,” that had “solely” lines); segregate along been enacted voters racial Feeney, cf. Personnel Administrator Mass. U. S. of (1979)(analyzing purpose 276-280 whether the of a law women). against although was to discriminate the Indeed, places per midcycle redistricting, Constitution no se on ban of the in the middle to redistrict legislature’s decision a legal no obli legislature under cycle, is when the census identifying judicial the of task gation makes the so, to do As be. simpler would otherwise legislature’s than it motive midcycle presence pointed out, “the has Breyer Justice par any that redistricting, a fair inference reason, raises for map-drawing major played in the role machinations tisan (dissenting opinion). process.” Vieth, S., 541 U. identify easily the motive that courts can The conclusion legal legislature no obli redistricting is under when the for very gation record in this case. is reinforced the to act pur unambiguously sole identified The District Court promulgate Plan a desire pose 1374C: behind the decision to Supp. partisan advantage. Session, 298 F. See to maximize (“It Republicans that clear from the evidence” 2d, at 472 was “ solely congressional districts state’s ‘decided to redraw the seizing seats from purpose five and seven for the between (quoting filed amicus brief Democratic incumbents’” (“There Vieth)); question Supp. is little but 2d, 298 F. Legislature single-minded purpose of the Texas that the gain advantage”). partisan It enacting Plan was to 1374C description of the District does not matter whether Court’s specific finding purpose qualifies it of fact because as ample perfectly is more than evidence clear that there finding. in support This evidence the record to such (2) (1) proce testimony legislators; from state cludes: accompanied irregularities dural described above including targeted adoption abolition 1374C, of Plan designed protect longstanding rule, two-thirds (3) minority rights party, Plan Senate; in the Texas districting significant departures from the neutral 1374C’s (4) respect county compactness lines; criteria of prior plan’s inter districts, from which excessive deviations relationships development strong between fere with the (5) Congress the constituents; and and their Members Voting Rights Indeed, plan’s comply to with the Act. failure

459 the itself State conceded that evidence “[t]he overwhelming demonstrated was the force partisan gain motivating behind the decision to redistrict in 2003.” State Post-Trial Brief In there is not my even a colorable judgment, basis for that the relevant intent—in this case a contending intent 3—cannot be identified purely partisan on basis admissible evidence in the record.4

Of course, the conclusions that courts are fully capable the intent behind a analyzing redistrict, decision to and that desire for was the sole factor partisan gain motivating decision to here, redistrict at issue do resolve the ques- tion whether of a proof intent suf- single-minded partisan ficient to establish a constitutional violation.

On the merits of that the State seems question, to assume Upham Seamon, (1982) our decision in v. U. S. curiam), (per has established already legislature’s right to a court-ordered replace for plan drawn plan purely

3The State suggests that in the process of drawing districts archi tects lines, of Plan frequently county 1374C followed made an effort to keep certain district, entire communities a given within and otherwise followed certain principles. neutral But these facts are not relevant to question the narrow presented by these cases: Neutral motivations in the implementation of particular features of redistricting qualify do not solely partisan motivation adopt behind the basic decision to an en tirely unnecessary plan in the first place. above, As noted rather identifying any arguably than neutral reasons 1374C, for adopting Plan purely partisan record establishes a single- clarity. Therefore, minded motivation with unmistakable there is no need point at this guide discuss standards judges enforcing that would rule allowing legislatures part partisan be motivated in consid erations, but which would impose not to apply too much “obligation an Jubelirer, (2004) Vieth partisanship districting.” U. S. (plurality opinion). Deciding only that 100% is “too much” is not a man decision, but, ageable below, it is explained obviously as also an correct Nonetheless, one. do, fact, it is worth emphasizing that courts possess the tools to employ permit legislatures partisan standards that to consider ship redistricting process, in the but which do not legislatures allow partisanship predominant use as the See motivation their actions. IV, Part infra. ultimately indulges Kennedy

partisan purposes. Justice Upham proposi- relying for assumption, on in a similar legisla- that state assumed decisions have that “our tion by plans remedial replace court-mandated free to tures are Ante, at 416. redistricting plans enacting of their own.” respect recognizes “[j]udicial for Kennedy Justice legislative justify reliance legislative plans, however, cannot districting Ibid. improper determinations.” on criteria incorrectly that the concludes then Kennedy But Justice advantage it- partisan not, in singular to maximize intent improper Ante, at 417-418. criterion. self, an such Upham distinctions be- on overlooks critical This reliance plan in redistricting drew the District Court tween the redistricting plan drew Upham the District Court Upham judicial plan in was created in Balderas. Attorney objection by provide response to an an interim originally contiguous plan districts in a that two General § Voting Legislature by of the Texas violated 5 drafted fashioning Rights in its interim that, Act. concluded We erroneously remedy, “substituted its the District had Court legis- reapportionment preferences of the state for those own judicial relief at 40. held that when S., lature.” 456 U. We “ necessary legislature ‘to re- failed because a state had was statutory] [or according apportion constitutional to federal adequate timely having requisites had an in a fashion after ” as opportunity should, as much so,’ do the federal court ” “ policies preferences possible State,’ ‘follow map. (quoting Weiser, creating Id., a new at White in (1973)). suggest that fed- did not 412 S. 794-795 We U. partisan identi- concerns, but rather eral courts should honor “ ‘expressed policies in statu- fied the relevant state as those reapportionment tory provisions and constitutional or legislature, plans proposed adherence the state whenever policy requirements of the from the to state does not detract (quoting Upham, S., Federal 456 U. Constitution.’” 794-795). Because the District Court White, S., 412 U. Upham authority drawing had exceeded its a new district- ing map, legislature we made clear that the was authorized remedy map choosing. the 5 violation with a of its own Upham, only prop- S., See 456 U. then, stands for the legislature osition that a state is authorized to a redraw congressional districting map court-drawn when a district authority. Upham court has exceeded its remedial does not proposition stand for the that, a after State embraces a valid, plan by asking neutral court-drawn this Court to affirm the opinion creating plan, may the State then redistrict for purpose disadvantaging minority political party. sole a

Indeed, to conclude otherwise would reflect a fundamental misunderstanding why of the reason we have held that state legislatures, pri- rather than courts, federal should have the mary creating apportionment plans task of comport with federal law. We legisla- have so held because “a state by ture is the institution that is far the best to iden- situated tify then policies” reconcile traditional state with the requirements of federal law, Finch, S.,U. at 414-415, not supply party because we wish to op- a dominant with an portunity disadvantage political opponents. to its Indeed, straightforward application a of settled constitutional law inescapable leads may to the conclusion that the State decide to if redistrict its sole motivation is “to minimize or voting strength cancel political out the of racial or elements voting population,” (empha- Fortson, S., 379 U. added). sis requirements

The of the Federal that limit Constitution power rely exclusively partisan preferences the State’s on drawing in district lines are the Fourteenth Amendment’s prohibition against discrimination, invidious and the First protection Amendment’s of citizens from official retaliation political equal protection based on their affiliation. The component requires of the Fourteenth Amendment actions by sovereign supported by taken legitimate to be some interest, and further establishes that a bare desire to harm legitimate interest. group is not politically disfavored Living Center, Inc., 473 U. S. g., Cleburne

See, Cleburne v. e. (1985). political belief Similarly, freedom 432, prevents First Amendment guaranteed association “penalizing citi- compelling interest, from State, absent process, participation the electoral of their because zens expression party, political their or with a ... their association J., political Vieth, S., at 314 541 U. views.” (Kennedy, judgment) (citing concurring Burns, 427 U. S. Elrod v. (1976) protections (plurality opinion)). embodied These the fundamen- reflect and Fourteenth Amendments the First g., impartially. Lehr duty sovereign govern E. tal (1983); City Tran- New York Robertson, 248, 265 463 U. S. v. (1979). Authority Beazer, 440 U. S. 568 sit in this liti- legislature’s redistrict at issue decision By principles. entirely gation these inconsistent with was Republi- advantaging purpose taking sole an action for the vio- of Texas disadvantaging Democrats, the State cans and govern impartially. “If obligation to its constitutional lated appor- passed 'All future a an enactment that declared State Party X’s most to burden tionment be drawn so as shall though rights representation, still in ac- to fair and effective surely principles,’ one-person, we would one-vote cord with Vieth, 541 violated.” the Constitution had been conclude concurring judgment). J., S., at 312 U. (Kennedy,

Ill Relying solely Kennedy maintains Vieth, on Justice solely legislation on desire to even if is enacted based that minority, unpopular insufficient politically this fact is harm a gerrymandering partisan ab- unconstitutional to establish legislation com- proof “the that the did fact burden sent rights.” plainants’ Ante, con- representative at 418. This clearly goes merits, rather than to the clusion—which gerrymandering manageability, partisan claim—is not aof requirement only constitutional inconsistent with the state action must interest, be but supported by legitimate also an insufficient to provides claim on response appellants’ the merits. Kennedy “the modified argues adopting

Justice sole-intent test” could excess at the out “encourage partisan set decade, of the when redistricts legislature pursuant its decennial constitutional then immune from duty Ante, of sole motivation.” 420. But this charge would be a As the problem Court’s own deci making. Larios, Cox sion in demonstrates, are, U. S. there in fact, standards that would readily manageable judicial (and allow injured excessive unconstitu parties challenge tional) partisan undertaken in gerrymandering response Vieth, the release of the decennial census data.5 See also id., at 347-353 atS., 328-339 (Stevens, dissenting); 541 U. J., id., at 365- J., joined J., dissenting); (Souter, Ginsburg, Kennedy’s 367 (Breyer, concern dissenting). J., Justice about a incentive to in such heightened excessive engage would partisan be avoided if the gerrymandering Court were to enforce those willing standards. (ND 2004) Cox, 1320, 1342-1353 See Larios v. Supp. (per 300 F. 2d Ga.

curiam). Cox, In the three-judge District Court undertook a searching review the entire record in concluding that population deviations in the state legislative districts created for Georgia House and Senate after the release of the 2000 by any census data were not driven tradi criteria, tional redistricting such as or compactness preserving county lines, but were by instead driven the impermissible regional factors of discriminatory favoritism and the protection Democratic incumbents. If there were no judicially manageable to standards assess whether a adoption map State’s of a redistricting governmental was based on valid objectives, we would not have summarily affirmed the decision in Cox over the only 947; id., dissent of one J., Justice. See 542 U. S. at 951 (Scalia, addition, In dissenting). opinion as Part III of the Court’s and this Part my opinion demonstrate, assessing redistricting map whether a has a discriminatory impact on the opportunities for voters and candidates of a particular party political process manageable judicial to influence the ais task. requirement any additional event, Justice Kennedy’s

In gerrymander in fact burden proof did that the there be that by clearly rights is satisfied complainants’ representative the accurate litigation. Indeed, the Court’s in this the record changes why di- exposition to District of the reasons district voting rights remain in that of Latinos who luted the simultaneously explains why changes disadvan- those also taged that the ef- and thus demonstrates Democratic voters pursuant to political gerrymander can be evaluated of a fects judicially manageable standards. supports my amply judgment the conclusion

In the record minority only party in Dis- that Plan 1374Cnot burdens imposes a burden on the also severe statewide 23, trict ability but politicians influence the of Democratic voters and political process.6 impose arguing an unconstitu-

In that Plan 1374Cdoes not candidates, the tional on Democratic voters and State burden equitable position plan that the has resulted in an takes the prin- political power two distribution of between State’s emphasizes cipal political parties. that State 1374C—Republicans pursuant Plan 2004 elections—held congressional That same 66%, 21 of or of the seats. won year, Republicans elec- carried 58% of the vote in statewide Admittedly, suggest tions. these numbers do “roughly delegation proportional” congressional was State’s parties’ vote, to the share of the statewide Brief State particularly light Appellees of the fact that our elec- system produce in which a toral tends to a “seat bonus” generally party majority wins an vote wins Heslop larger majority for Alan seats, even see Brief (describing phenome- et as the seat bonus al. Amici Curiae litigation of Dem Although group the burdened at issue this consists candidates, partisan gerrymandering analysis ocratic voters and any co throughout opinion equally applicable “politically this be would Vieth, S., in bloc U. group engaged voting.” herent whose members (Souter, Ginsburg, J., J., joined dissenting). non). J.) (opinion ante, (arguing Cf. of Kennedy, compared redistricting challenged plan that, to the Vieth, making party “Plan 1374C can be seen as balance more congruent party power”). to statewide produced “roughly proportional”

That Plan 1374C a con- gressional delegation in 2004 does not, however, answer the question plan discriminatory whether against has a effect appellants point districting Democrats. As out, whether a map against political party depends upon is biased the bias map depends upon in the oppor- itself—in other it words, map party, tunities regardless that the offers each of how perform given year. candidates in a And, as the State’s ex- pert litigation, clearly found in this Plan 1374C has a discrim- inatory opportunities effect in terms of the it offers the two principal political parties in Indeed, Texas. that discrimina- tory effect is severe.

According expert, Gaddie, to Professor the State’s Plan gives Republicans advantage congres- 1374C an of 32 plaintiffs’ sional expert, seats. Professor Alford, who favorably by had been cited having the Balderas Court as applied approach” redistricting “neutral litiga- to in that App. agreed. tion, 207a, Juris. Statement that, He added only surprise in his view, from the 2004 elections was things “how achieving pro- far moved” toward a 22-to-10 (dec- Republican split year,” single “in a id., election at 226a Ph.D.).7 laration of John Alford, R. But this 22-to-10 advan- tage depend Republicans does not winning on the 58% share they of the statewide vote that received in Instead, congressional elections, In the 2004 Republicans won 21 of seats designed that had been Republicans to favor in Plan 1374C. One Demo incumbent, (with cratic Representative Edwards, narrowly Chet defeated vote) 51% the his nonineumbent Republican challenger Republican- in a leaning district; Edwards outspent challenger, his strong who lacked ties principal likely communities in the district. Republicans are spend money more and find stronger challenger which will cre “very ate a significant chance” of a Republican defeating App. Edwards. 224a, to Juris. Statement 226a.

466 likely Republicans would be

according Gaddie, to Professor only they 52% carry congressional if won seats 22 of 32 to differently, Plan App. 229. Put 216, vote. of the statewide Party succeeds if the Democratic that, even ensures 1374C Republicans people convincing voted for who 10% of the con- for Democratic elections to vote in the last statewide major elec- gressional constitute candidates,8 which would unlikely any change in the number be shift, toral there is to Moreover, congressional win. Re- that Democrats of seats advantage overwhelming if publicans still have an would According parity. Pro- achieved full electoral Democrats carry likely analysis, Republicans would be fessor Gaddie’s they only 50% congressional even if won seats 20 of the 32 49%) (or, Id., 216, of the statewide vote. matter, for that Plan 1374Cis inconsistent This demonstrates that 229-230. symmetry scientists use standard, a measure social with the undoubtedly “a partisan reliable which is bias, to assess complainants’ measuring a on the “burden ... standard” J.). rights,” representative (opinion KENNEDY, ante, 418 of sys- “requires symmetry that the electoral The standard similarly-situated parties equally, re- tem that each treat so particular legislative of for a ceives the same fraction seats percentage party receive if it had vote as the other would Gary King percentage.” et Brief for al. received same by widely accepted as This Amici Curiae 4-5. standard providing partisan in elec- fairness scholars as measure systems. Relationship g., Between See, Tufte, toral e. The Two-Party Systems, Pol. 67 Am. Sci. Rev. Seats Votes (1973); Democracy King, Enhancing 540, 542-543 Gelman & Through Legislative Redistricting, Sci. Rev. 88 Am. Pol. (1994); Implica- Thompson, Election Time: Normative Properties Temporal in the tions of of the Electoral Process candidates, If 10% of for Democratic Republican voters decided vote preferences, turnout or changes and if there were no other voter from 58% vote would be reduced Republicans’ share statewide to 52%. (2004); States,

United 51, 53, 98 Am. Pol. Sci. Rev. and n. 7 Engstrom Responsiveness: Kernell, & Manufactured Impact Party State Electoral Laws on Unified Control of Presidency Representatives, and House 1840-1940,49 (2005). Am. J. Pol. Sci. Like other models that ex- perts analyzing compliance use in vote dilution claims, symmetry extrapolating standard is measured from a sample g., Thornburg Gingles, data, see, known e. (1986) 30, 53, U. (discussing S. and n. 20 analy- extreme case ecological regression sis analysis). and bivariate In this liti- gation, symmetry simply the proposed by standard was not an by amicus to this expert Court, it was also used the plaintiffs expert assessing degree and the for the State partisan of bias in App. Plans 1151Cand 1374C. See 34-42 (report Alford); of (report Professor id., at 189-193, 216 Gaddie). Professor Republicans

Because, as above, noted would have an ad- vantage significant majority in a of seats even if the state- equally Republicans wide vote were distributed between significant Democrats, Plan departure 1374C constitutes a symmetry By from the standard. on contrast, based Profes- sor though Gaddie’s slightly evaluation, Plan, the Balderas Republicans, provided biased in markedly favor of eq- more opportunities Republicans uitable and Democrats. For example, symmetry consistent with the standard, under Plan parties likely congressional 1151C the were to each take 16 they if seats won App. 50% of the statewide vote. See clearly discriminatory Plan impact then, 1374C has a on opportunities that Democratic citizens have to elect can- discriminatory didates their Moreover, choice. this effect According cannot be dismissed as de minimis. to the State’s expert, party if each vote, receives half the statewide under (20) Republicans carry Plan 1374C the would 62.5% congressional seats, whereas Democrats would win 37.5% (12) of those words, seats. In other vote distribution point politically map where a neutral would result zero captured each percentage of seats in the

differential 25% create a differential. party, Plan 1374C structured significant disad redistricting map imposes a such aWhen group politically voters, the State vantage salient on a map. defending Cf. shoulder the burden should (1983) (holding 835, 842-843 Thomson, 462 U. S. Brown v. leg redistricting plan implementation for state of a that the population 10%creates over deviations islative districts with Equal prima Protec under facie case of discrimination shifting State to defend the burden to the Clause, tion thus (ND Supp. plan); 1320, 1339-1340 Cox, 2d Larios v. 300 F. (2004) Ga.) curiam), summarily (per 542 U. S. 947 aff'd, ” “ (same, percent pointing rule’ the ‘ten but further out that concluding the circum that, under harbor, is not safe districting legislative a state it, stances of the case before though population plan even deviations was unconstitutional 10%). very plaintiffs once have least, were under At the adopting legislature’s purpose in established that the sole plan plaintiffs partisan—as have established in this ac was discriminatory supra—such a effect tion, II, see Part severe they any have should be sufficient to meet additional burden redistricting map accomplishes its to demonstrate that the discriminatory purpose.9

9 Kennedy Justice symmetry standard for not proponents faults dominance is too deciding partisan a standard for how much “providing much,” ante, Court, proponents symmetry is of the 420. But it this standard, question to of how judicial that has the answer the obligation would, course, eminently be an man much unfairness is too much. It that deviations of over 10% ageable standard for Court to conclude gerryman symmetry prima from create a facie case of an unconstitutional der, than create just of more 10% population among as deviations districts Or, significant a conclude that a prima facie ease. the Court could such whether, departure symmetry analyzing from is one factor in relevant circumstances, an unconstitu totality districting plan under of the 11, rate, any proponents See n. At partisan gerrymander. tional infra. (though certainly not symmetry helpful provided of the standard have talismanic) litigation. appreciate in While I JUSTICE type tool this Kennedy’s in open to of the standard future leaving the door the use striking regard The bias in Plan 1374Cis most to its ability effect on the of Democratic voters to elect candidates discriminatory choice, of their but its effect does not end there. Plan 1374C also lessens the influence Democratic likely Republican voters are to be able to exert over lawmak- minimizing capacity play ers, thus further Democrats’ meaningful political process. in role though political reality suppose

Even it “defies that losing party members political of a have as much influence government party,” over... as do members of the victorious (1986)(Powell, Davis Bandemer, v. 109, 170 U. S. J., con curring part dissenting part), in recog in the Court has power nized that political process “the to influence the is not winning (plurality limited to opinion); id., elections,” at 132 (2003). Georgia see also 539 U. S. In Ashcroft, assessing group whether members of a whose candidate is polls defeated at the can nonetheless influence the elected representative, “important it is to consider ‘the likelihood that minority candidates support elected without decisive willing minority’s would be to take the interests into ac Ibid, (quoting Gingles, (O’Connor, count.’” S., 478 U. concurring judgment)). J., justification major One ity rule generally is that elected officials will “take the minority’s part major interests account,” into because the ity recognizes preferences today’s minority shift and majority. e.g., Tyr could be tomorrow’s See, Guinier, L. anny Majority (1994); Ely, Democracy J. and Dis (1980); trust 84 cf. Letter from James Madison to Thomas (Oct. 1787), reprinted Jefferson Republic in 1 of Letters (J. 1995) (arguing “[t]he Smith great ed. desideratum modify sovereignty Government is ... as that it may sufficiently be parts neutral between different Society” prevent majority oppressing thus a fixed from minority). the Indeed, this Court has concluded that our ante, cases, 419-420,1 see Court, believe it is the role of this not social scientists, to determine how much partisan dominance is too much. democracy premised on the as- is system representative represent their to sumption will seek elected officials that any faction constituency than dominant whole, as a rather constituency. Reno, 509 U. S. See Shaw v. within that (1993). assumption con- that this crucial Plan undermines 1374C (in majority party this gressional representatives the from represent Republicans) entire constit- seek their will case obviously solely uency. to effec- a is created “When district group, perceived of one racial the common interests tuate primary likely to believe that their officialsare more elected group, represent only that obligation the members of is to constituency Ibid. Shaw’s than as whole.” rather their gerryman- analysis representational in the racial harms dering applies much force in context with at least as partisan gerrymandering because, context addition to only may job possibility representative her is believe constituency, rep- represent the interests a dominant may cartographers more resentative feel beholden who live who drew her district than to constituents dis- Vieth, J., U. at 329-331 S., there. See (Stevens, senting). short, In Plan reduces likelihood 1374C gerrymandered Republican representatives dis- elected from vigorous the needs and inter- tricts will act as advocates for who within their districts. ests of Democrats reside weakens the incentives addition, In Plan 1374Cfurther majority party to take interests of members Republican minority party into because it locks in a account long majority Republicans congressional seats, of 20-22 so as this at least 49% of the vote. The result of lock-in achieve according expert, 22 of that, to the State’s between Republican meaning are seats where seats, these seats safe advantage party one a 10% over the other. See has least Gaddie). (expert report App. Members 227-228 of Professor worry Congress elected from such safe districts need

471 much about so possibility shifting majorities, they have little reason to be minorities responsive political within their district.10 sum,

In I think it is clear that Plan 1374C has a severe burden on the of Texas Democrats to influence the capacity Far from political process. an of “one representing example of the most acts a State can to ensure significant perform ante, citizen participation republican self-governance,” 416 (opinion J.), plan guarantees Kennedy,

10Safe may seats harm the process democratic in other ways as well. According one recent article by coauthored a former Chairman of the Commission, Federal Election electoral competition “plainly positive has a effect on the participation interest and process.” voters in the electoral Potter & Viray, Election Reform: Barriers to Participation, 36 U. Mich. (2003) (hereinafter 547, J. L. Reform 575 Viray); Potter & see also L. Gui lder, (1994). Tyranny Majority 85 The impact of noncompetitive elections in depressing voter turnout especially troubling is in light of the fact that participation voter behind, the United lags States often well behind, participation rates in other democratic nations. Potter & Viray 575-576, addition, and n. 200. In the creation of safe seats polar tends to Beaver, g., See, ize decisionmaking Clingman e. 581, bodies. 544 U. S. (2005) (Stevens, J., joined Ginsburg, J., by dissenting) (noting that safe districts can “increase the bitter partisanship already poi has soned some of those [legislative] bodies that provided once exam inspiring ples of adversary deliberation”); courteous Cox, debate and Partisan Ger rymandering and Disaggregated Redistricting, S. Ct. Rev.

(arguing that “safe produce because, seats more polarized representatives by definition, the median voter in a district that closely divided between major the two parties is more centrist than the median voter in a district Raviv, dominated one party”); Person, Unsafe Harbors: One One Vote (2005) 1001,1068 and Partisan Redistricting, 7 U. Pa. J. L. (arguing Const. that safe districts encourage polarization decisionmaking bodies because representatives from only those districts have to cater from voters one party). Karlan, See generally Issacharoff & Where to Draw the Line?: Judicial Review of Gerrymanders, Political 153 U. Pa. L. Rev. (2004) (providing data about large percentage of safe seats in recent congressional legislative elections, and state concluding that “Mon- competitive legitimacy vitality elections threaten both the and the of dem governance”). ocratic congres- membership of the Texas

Republican-dominated sig- notwithstanding delegation remain constant will sional opinion. public pro-Democratic Moreover, shifts nificant “hypo- imposes Democrats are harms Plan 1374C on simply because, “counterfactual,” ante, at thetical” or roughly Republicans share won a of seats elections, the 2004 By voting strength. creat- proportional to their statewide already Republican ing Plan has seats, 19-22 safe 1374C signifi- explained above, it because, harmed Democrats as Republican cantly lawmakers that undermines likelihood responsive to of be the interests those districts will from addition, In Democrats will Democratic constituents. their strong recruiting surely candi- have more difficult time a mobilizing Re- resources, in these safe dates, and voters and any req- appellants publican have satisfied Thus, districts. they obligation demonstrate that have been harmed uisite to adoption Plan of 1374C. supra, II, the sole in- in Part Furthermore, as discussed replace motivating Legislature’s to Texas decision tent Republicans benefit Plan 1151Cwith Plan 1374Cwas to Accordingly, in terms of its intent Democrats. both burden sovereign’s duty gov- effect, violates the Plan 1374C impartially. ern adopts governing a its election ma-

“When rules State chinery defining those boundaries, or electoral rules community. entire If must the interests of the serve seg- they purpose other than favor one serve no religious, po- economic,or racial, ethnic, ment—whether strength par- may occupy position litical—that point politically disadvantage or to time, ticular community, they segment the consti- weak violate guarantee equal protection.” Karcher, tutional (citation omitted). concurring) S., J., U. (Stevens, gerry- Accordingly, accepting that a even the Court’s view minority’s mander is unless it in fact burdens the tolerable I would hold that Plan rights, 1374C is representative unconstitutional.11

IV Even if I that Plan 1374C were not unconstitu- thought tional in I its would entirety, hold Dis- cracking the Balderas trict under 24—which, was a Plan, majority- district Democratic minority elected consistently Martin Congressman Frost—was unconstitutional. Readily standards enable manageable us both the analyze purpose and the effect of the decisions that “granular” produced for District standards, these replacements Applying I below, which set forth I it believe is clear that the manipu- lation this district violated the purely partisan gain First and Fourteenth Amendments.

The same constitutional discussed above con- principles the cerning to sovereign’s inform duty govern impartially the a proper claims that district is an analysis particular unconstitutional have on several partisan We gerrymander. occasions that a multimember district is recognized subject the under Fourteenth if it challenge Amendment operates “ ‘to minimize or cancel out racial or of the voting strength 11In expert this litigation testimony provided the principal evidence Kennedy the plan about effects of the that the satisfy test Justice would impose. my however, In judgment, challenges most al statewide an leged gerrymander primarily by examining should be evaluated these ob (1) jective factors: number of people the who have been moved from one (2) another, district the compact number of districts that are less than (3) predecessors, their the degree plan departs to which the new from criteria, neutral districting including other in respect for communities of (4) Act, and with compliance Rights terest the number of Voting the dis that tricts have in an opposition been cracked a manner that weakens (5) incumbent, party the number of districts that include two incumbents (6) the opposite adoption plan gave from whether party, the the opposition party, other in groups, opportunity input and a fair to have the (7) redistrieting process, likely seats that to be safe number of are (8) for the in party, seats dominant the size of the the new departure from plan symmetry standard.

474 ” Gaffney g., voting population.’ E. political elements of the (1973) added); (emphasis Cummings, 751 735, 412 U. S. v. (1966). is no There Richardson, 73, 88 Burns v. U. S. in- constitutionally the harms between relevant distinction gerrymanders by single-member that mini- flicted district political strength voting a element of mize or cancel out the by population multimem- and the same harms inflicted the State has interfered situations, ber In both districts. “engage right to in association constitutional voter’s Ala- ideas,” v. for the advancement of beliefs and NAACP (1958). Patterson, 449, bama ex rel. U. S. always poli recognize legislatures

I will be aware political tics and that we must tolerate some consideration City goals redistricting process. See Cousins (CA7 1972) (Stevens, Chicago, 466 F. Council 2d equally dissenting). However, that, clear J., I think it plaintiff prove legislature’s predominant can a when disadvantage particular drawing motive in district was to group, in politically that the decision has salient plaintiff’s rights have been tended effect, constitutional five id., Indeed, Vieth, violated. at Mem See 859-860. recognized par explicitly bers of that extreme this Court gerrymandering tisan the Constitution. See violates concurring judgment); S., U. at 307, 312-316 (Kennedy, J., dissenting); id., id., 347-352 J., 317-318 (Stevens, joined dissenting); id., at 356- J., J., (Souter, Ginsburg, dissenting). J., 366-367 other four Jus (Breyer, they disagree in tices Vieth stated that did with opinion). (plurality id., conclusion. at 292 The Vieth See judi plurality that there were no nonetheless determined cially partisan gerrymander manageable standards to assess following ing test, However, Id., claims. at 305-306. burden-shifting standard which shares some features of the gerrymandering pro assessing partisan unconstitutional posed by opinion Vieth, id., see at 348- Justice Souter’s remedy provide 351, would a for at least the most blatant

475 partisan gerrymanders unconstitutional and would also be eminently manageable. standing challenge

First, to have a district an as uncon- partisan gerrymander, plaintiff stitutional would have to prove that he is either a candidate or a voter who resided in changed by districting plan. district that was a new See dissenting) id., (discussing at 327-328 (Stevens, J., United (1995)). Hays, States v. 515 S., U. S. 737 also 541 at See U. (cit- joined by dissenting) 347-348 (Souter, J., J., Ginsburg, ing Hays). plaintiff standing A required with would then be prove improper purpose both and effect. respect “purpose” portion inquiry, With to the of the I apply would the standard fashioned the Court in its racial gerrymandering gerryman cases. Under the Court’s racial dering jurisprudence, judges analyze plaintiffs must whether proved predominant have that race was the factor motivat ing districting decision such that other, race-neutral dis tricting principles were subordinated racial considera scrutiny applies, g., tions. If so, strict see, Vera, e. 517 S.,U. (plurality opinion), at justify 958-959 and the State must its districting by establishing narrowly decision that it was tai compelling lored to serve a compliance state interest, such as § Voting Rights 2 King with Act, see v. Illinois Bd. of (ND 1997), Supp. summarily Elections, 979 F. aff'd, Ill. (1998); (O’Connor, 522 U. Vera, S. S.,U. concurring).12 scrutiny J., apply However, strict does not merely motivating because race was one factor behind the drawing majority-minority of a Id., district. 958-959 (plurality opinion); Easley see Cromartie, also 532 U. S. (2001). Applying political 234, 241 these standards to the gerrymandering plaintiff I context, would hold if a that, car- Breyer Justice has authorized me to state that with agrees he Jus compliance tice Scalia Voting Rights 5 of the Act is also a post, compelling state interest. See (opinion concurring judg part I, too, ment in dissenting part). agree with Justice Scalia on point. this demonstrating subordi that redistricters of

ried her burden political districting principles considerations to neutral nated par to one predominant was maximize motive that their satisfy prong constitu ty’s power, of the the intent she would inquiry.13 J., at Vieth, S., 541 U. 349-350 tional Cf. (Souter, impor dissenting) (discussing joined J., Ginsburg, districting departures from traditional of a tance district’s determining an unconsti principles in whether the district is gerrymander). tutional plaintiff respect inquiry, a would be to effects

With (1) following required her three facts: demonstrate the (2) plan; her of won under old candidate choice election oppo- in a district that is a safe seat for residence now (3) party; compact new is less than the site her district inquiry prongs first two of this effects old district. The plaintiff designed or be to measure whether not the would prong third be relevant harmed, has been whereas the would always provided shape gerrymander has because Karcher, S., at character, crucial evidence of its see U. concurring); Vieth, 754-758, J., 762-763 see also (Stevens, joined by S., J., J., 541 U. dissent- (Souter, Ginsburg, (noting districting prin- ing) compactness is a traditional ciple, quantitatively”). which Moreover, “can be measured compact newly a safe harbor for more districts would allow majority prior partisan gerrymander elected to eliminate a liability without fear or need to even the devote resources litigating legislature or not with an whether had acted impermissible intent.

13If, hand, demonstrate, example, on the other could State part apportion the new district of a designed was statewide scheme power fairly political salient or to enhance the among politically groups, (such of an interest residents power underrepresented community as economically liability an the State would even if region), distressed avoid districting predictably partisan the results such statewide had effects. (Souter, Vieth, Gins S., J., generally joined by See 541 U. 351-352 burg, J., (discussing interests that a State could dissenting) legitimate as a facie posit prima partisan gerrymandering). defense to a case of plaintiff standing a If could meet intent and ef- prong plaintiff above, fects of the test outlined that would clearly have her constitutional demonstrated violation of any rights. be I do not think there can colorable Moreover, judicially manageable. that claim this test would not be Applying plain- cases, this the facts of I think test to these 6, 24, tiffs new 26, Districts and 32—four districts parts replaced in Plan District 24— 1374C of Balderas rights their can demonstrate that constitutional were vio- by cracking lated I First, Balderas District 24. plaintiffs assume that there are who reside in Districts 6, previously 26, 24, 32, and whose homes were located Accordingly, in Balderas District 24.14 I assume that there plaintiffs standing challenge are who have to the creation of these districts. plaintiffs easily satisfy prov-

Second, could their burden of ing predominant partisan purpose. litiga- Indeed, in this acknowledged predominant tion, State has that its moti- cracking partisan gain. vation District was to achieve State (noting spite See Brief that, Post-Trial 51-52 of con- cracking Voting cerns that the of District 24 lead could to Rights liability, Legislature “[t]he pursue Act . . . chose to political goal unseating Congressman Frost instead of following might [of a course that have lowered risks such liability]”). agreed analysis

The District Court with the State’s on this plaintiffs In issue. the District Court, claimed that the cre- Equal ation District 26 violated the Protection Clause be- by cause decision create was District 26 motivated against unconstitutional racial discrimination black voters. 14 This assumption justified undisputed representa based on counsel’s However, at oral argument. tions Tr. of Oral Arg. See if there were any genuine dispute about whether there are whose plaintiffs residences located Balderas District previously 24, were which but are now incor porated 6, 24, into appropriate Districts be remand would allow District Court to address this issue. concluding argument, rejected this

The District Court 24 was driven Balderas to crack decision State’s by political desire prejudice, rather racial but Congress- advantage “remove Republican and to maximize large portion required “lose a that Frost Frost,” which man constituency, many in a lived of whom of his Democratic County.” Session, 298 predominately of Tarrant Black area Supp. 2d, F. at 471. partisan, purpose impermissible, predominantly an

That cracking dem- 24 is further of former District motivated the cracking my judgment, this by in that, the fact onstrated §5 Rights Voting Act, 42 Plan to violate caused 1374C § adopt plan willingness to that 1973c. The State’s U. S. C. Voting Rights legal obligations Act, its under violated partisan in of intent this the other indicia combined with simply compelling politics litigation, was not evidence cracking it 24, but rather that one factor in the of District impermissible, predominant factor. was an Voting Rights 'to insure 5 the Act “was intended Section of minority partici- gains political [the far thus achieved through [discriminatory] destroyed pation] new shall not be techniques.’” States, procedures 425 Beer v. United (1976) Rep. p. (quoting 94-295, S. 19 130, U. S. 140-141 No. Beer). (1975); goal, pre- To effectuate this alteration in making jurisdictions, from Texas, such as vents covered voting procedures changes “that to a ret- to their would lead respect rogression position to of racial minorities with Georgia, exercise the electoral franchise.” their effective of omitted). (internal quotation In marks S., U. juris- redistricting during process, covered other words, may minority less not voters with chance dictions “leave they electing preferred were” candidates than be effective in prior districting plan. id., under the See (Souter, J., by By dissenting). cracking 24, Balderas ability preferred offsetting elect the loss black voters’ impermissible elsewhere, candidates Plan 1374C resulted in retrogression.

Under the Plan, Balderas black Americans constituted a majority primary of Democratic voters in District Ac- cording report attorneys to the unanimous authored staff Voting Department in the Section Justice, of black generally cohesively, voters in District 24 voted and thus ability had the elect their candidate in the choice Demo- primary. cratic Section 5 Recommendation Memorandum (Dec. 2003), http.7/www.washingtonpost. available at (as com/wp-srv/nation/documents/texasDOJmemo.pdf visited file). June 2006, and available in Clerk of Court’s case community’s Moreover, the black candidates choice could consistently voting attract sufficient crossover from non- general blacks though to win the election, even blacks did majority general not constitute a of voters in the election. Id., Representative at 33-34. Frost, is white, who was clearly community the candidate of choice of black in Dis- testimony trict on community 24, based election returns, groups leaders, and “‘scorecards’” he received from dedi- advancing cated to the of interests African-Americans. See

id., at 35. minority community

As noted above, in Plan 1374C,“the [.Balderas splintered District] [was] in submerged 24 and into majority Anglo districts in the Dallas-Fort Worth area.” By dismantling Id., at 67. one district where blacks the had ability by to elect choice,15 candidates of their and not offset-

15 below, In the decision the District Court concluded that black voters Session not did in fact “control” in electoral outcomes District 24. See v. Perry, (2004). 451, P. Supp. as Justice Ken 298 2d Even assuming, 498 nedy concludes, ante, 444-446, at see that the District Court not com did issue, mit reversible in analysis error its of this the lack of might “control” be relevant in analyzing plaintiffs’ §2, vote dilution claim under but it is not relevant in evaluating whether Plan retrogressive 1374C is under § Balderas District 24 that, 5. It indisputable least, is at very the awas strong voters, is, influence district for black a district where voters “play substantial, decisive, color can a proc- if not role in the electoral where black

ting another district of a district with this loss retrogres- opportunity, was Plan 1374C a similar voters had § Voting Rights id., Act. See the sive, in violation of 5 of 31, 67-69. opinion

Notwithstanding of the staff attor- the unanimous Department that neys Voting of the Justice in the Section Attorney retrogressive and that the General was Plan 1374C Attorney interposed objection, General an should have map, allowing preclear it to take effect. to thus elected statutory may voters scheme, that, have held under the We pre- directly challenge Attorney to decision not General’s plan, redistricting Gressette, 432 U. S. Morris clear a see v. vigilant (1977), Attorney General’s which means that the critical, is and which also means that enforcement of the Act § challenge part bring plaintiffs of this lit- not a 5 as could upon judges frequently igation.16 to However, are called redistricting plan §5, a violates because consider whether option seeking jurisdiction achieve a has the covered Attorney by plan preclearance submitting either its declaratory filing judgment in Dis- action General or judgment is Columbia, trict for the District of whose Court (2003). Ashcroft, dis- Georgia Accordingly, ess.” 539 U. S. influence mantling Balderas by failing strong create a S., elsewhere, U. retrogressive. district Plan was See 539 1374C “a that, plan in is court must (explaining deciding retrogressive, whether ”). ‘influence districts’ plan examine whether a new adds or subtracts Kennedy ante, 443-447, did, Justice plaintiffs explains, see As however, agreement Iam in substantial challenge District under post, with Justice Souter’s See at 485-490 discussion of this issue. agree I part). in (opinion part dissenting Specifically, concurring rule,” support finds no Justice Souter that the “50% which §2, statutory vote text, part or history, purposes proper my analysis “unique of 'the dilution For the reasons stated inquiry. this, supra, 456, part of . . raised in this and in question appeal,” law . 24 however, cracking District cre my opinion, of it is so clear that the of unnecessary gerrymander ated I find it to address an unconstitutional that the statutory separately. issue

481 subject Georgia, g., Court, to review this e. see, 539 U. S. analyze Accordingly, have we the tools to whether a redistricting plan retrogressive. is § though directly

Even issue not before Court, this cracking for the reasons above, stated I believe that the retrogressive. District 24 caused Plan be 1374Cto And the legislature promulgated plan fact retrogressive provides is relevant it because additional evidence that the legislature predominantly partisan purpose. acted awith Complying districting principle, a5 is neutral and the legislature’s promulgation retrogressive redistricting of a plan my “legislature buttresses conclusion that the subordi- [politically] districting principles nated traditional neutral [political] . . . to Johnson, considerations.” Miller v. (1995). particularly compel- U. S. 900, This evidence is ling light acknowledgment Legis- “[t]he of the State’s pursue political goal unseating lature . chose . . Con- gressman following Frost might instead a course that have preclearance process.” lowered risks in the State Post- (citing, Trial testimony Brief 52 alia, inter trial of state legislators). litigation

In sum, this record makes clear that the predominant underlying fragmentation of motive Bal- Republicans’ deras was to maximize electoral opportunities Congressman and ensure that Frost was defeated.

Turning proposed, plaintiffs now to I the effects test have easily in new 6, 24, 26, Districts 32 could three meet the (1) parts they Plan, that test because: under the Balderas (Frost) lived in District 24 and their candidate of choice was (2) winning they candidate; 1374C, Plan been under have placed Republican in districts that are safe seats for party, App. (showing see that the Democratic share of two-party vote in statewide elections from 1996to 2002 (3) 32); was 40% or less in Districts their 26, and 482 compact see 24, District than Balderas are less

new districts the under (compactness for districts App. scores 319-320 1374C).17 Plan and Plan Balderas ap- my proposed rejects as test, effects Kennedy Justice plied his District in view Balderas cases, in these because But “any special ante, at fairness,” claim to 446. 24 lacks depends proposition Bal- my analysis way no on the in compact was more fair. The district deras District was explained replaced it, as and, four of the districts that than important compactness values in district- above, serves why, my ing process. that creates view, This in a State is parti- compact enjoy from a harbor more districts should safe fact gerrymandering the mere However, san claims. surely provide har- prior not a safe was unfair should district an more unfair district. Con- bor for creation of even compact versely, may create less districts of course State violating long purpose is so as its without Constitution politically group. disadvantage a See not to disfavored supra, I focus on Bal- 477-478, and n. The reason but fair, District 24 not because the district was deras provides prior in ana- clear benchmark because district lyzing plaintiffs been harmed. whether have judicially manageable applying set sum,

In test forth cracking my opinion of Balderas this Part of reveals that partisan gerry- District created several unconstitutional in- if I that Plan were manders. Even believed 1374C entirety, judgment I below valid its would reverse regard 6, 26, to Districts and 32. 24,

[*] ^{[*] [*]} for 12, portions that covers Because new District another district than Balderas District 24, new compact mer District is more voters resided in Balderas be District 24 would not previously who pro my claim under bring partisan gerrymandering able to a successful test, posed though Republican 12 is a safe district. even new District also App. See 319-320. foregoing although reasons,

For the I concur with the ma- §2 jority’s decision to invalidate District 23 under of the Vot- Rights ing respectfully Act, I dissent from the Court’s deci- judgment respect plaintiffs’ sion to affirm the below with partisan gerrymandering I claim. would reverse with re-

spect plan specifically, the as a whole, also, and more respect to Districts 6, 24, 26, and 32. Ginsburg Souter,

Justice with whom Justice joins, in and in concurring part dissenting part. join principal

I Part opinion, rejecting II-D of the the one-person, challenge simply one-vote to Plan based 1374C timing, on its join mid-decade and I also II-A, Part in which preserves partisan the principle gerryman- Court the dering recognized can be equal protection, as a violation (2004) see Jubelirer, Vieth v. 541 U. 267, S. (Kennedy, concurring judgment); in id., J., dissent- (Stevens, J., ing); id., dissenting); at 346 (Souter, id., at 355 (Breyer, J., dissenting). nothing gained by working I see to be J., through these applied cases on the standard I would have in supra, Vieth, (dissenting opinion), at 346-355 because here any majority as in we single Vieth have no criterion of (and impermissible gerrymander none for a conclusion that board). Plan 1374C unconstitutional across the I there- gerrymander fore treat the broad issue of much as the sub- ject improvident grant only of an certiorari, and add two thoughts for the that I future: do not share Ken- Justice nedy’s seemingly rejection any gerrymander flat test of turning process redistricting, on ante, followed in see opinion), (principal utility 416-420 I nor do rule out the of a symmetry g., King Browning, criterion of a test, see, as e. & Representation Congres- Democratic in and Partisan Bias (1987). sional Elections, 81 Am. Pol. Interest Sei. Rev. exploring ante, in this notion is see at 419-420 evident, concurring J.,

(principal opinion); 465-468 ante, at (Stevens, post, J., dissenting part); part at 491-492 in in and (Breyer, Perhaps dissenting part). further concurring part in administrability of such devoted to the attention could be redistricting and its review. levels of criterion all opinion, join principal in which the Court I Part III of the §2 of Vot- violates District 23 that Plan 1374C’s holds § diluting mi- ing Rights 42 U. S. C. Act of respectfully from voting strength. I dissent nority But plurality upholds District Court’s IV, Part in which a cracking rejection 2 in Plan violated claim that 1374C submerging population prior 24 and black fragments 6, 12, 24, 26, and On its in new Districts contrary, judgment fur- remand for I vacate the would ther consideration. rest a threshold determination

The District Court made ing reasonably precedent on a clear rule of this Court and on by Valdespino Alamo Circuit, laid Fifth see v. down the Heights Independent 848, Dist., 168 3d 852-853 School F. (2000): (1999), first denied, cert. 528 1114 the condition U. S. §2 Thornburg making v. violation, for a as set out in out (1986), Gingles, requires minority group “the ... 478 U. S. 30 sufficiently large geographically it demonstrate that majority single-member compact dis to constitute a in a 24) (here, a id., at the old dilution trict,” 50, before § plu recognized Although both the claim can be under 2.1 sidestepped rality today prior the and our own cases have question statutory prevail dilution claim can with whether percentage minority possibility out voters the of district of Grandy, De S. 50%, ante, 443; at v. 512 U. above see Johnson 1 Gingles we did not state the first ease, however, condi subsequent In a Grandy, See Johnson v. De 512 majority. tion of in terms an absolute (1994) (“[ T]he Gingles 997, 1008 possibil U. S. condition requires first ity existing reasonably compact of than of dis creating more number of sufficiently minority large population tricts with to elect candidates choice”). its 485 (1994); 997, 1008-1009 Quilter, Voinovich v. 507 U. 146, S. (1993); (1993); Emison, 41, Growe v. 25, 507 U. S. 5n. Gingles, supra, day n. has come to answer it. among

Chief the reasons that the time has come is the holding Georgia (2003), U. S. 461 re- Ashcroft, placement majority-minority by of a district a coalition dis- minority making trict up voters fewer than half can § prohibition retrogression survive the of under 5 of the Vot- § ing Rights through pre- Act, U. C. 1973c, S. enforced requirement, Georgia, clearance S.,U. at 482-483. At least signifi- §5, under a coalition district can take on the previously cance majority-minority accorded to one with a voting population. despite §§2 independence Thus, of and 5, id., 477-479, integ- there is reason to think that the rity minority voting population in a coalition district protected majority-minority should be much as a bloc would protection begin through preclearance be. While should process,2 jurisdictions required, proc- where that is if that § minority ess fails a remedy voter has no under 5 because (or Attorney the State and the General the District Court Columbia) only participants the District pre- are the § clearance, see U. S. And, C. 1973c. course, vast areas country §5. by minority are not covered Unless a voter is to be left with no recourse whatsoever, relief then, possible, under 2 must be as definition it would not be majority minority if a numerical voters in a reconstituted putative necessary or district is a I condition. would there- minority voting fore hold a popula- that of 50% or less of the might Gingles tion gatekeeping stage. suffice at the To clear-edged have a I rule, would hold it sufficient satisfaction gatekeeping minority the first condition to show that vot- putative in major-

ers a reconstituted or district constitute a 2 Stevens, Like Justice Justice Scalia that agree I with compliance §5 (Stevens, ante, is a compelling 475, state interest. See at 12n. J., concurring (Scalia, part J., in dissenting part); and in at post, 518-519 in concurring judgment in in part dissenting part).

486 party, that voting primary of the dominant ity in the those general tending election.3 party in the to win is, the gave light explanation we in This rule makes sense entertaining Gingles a claim for for the first condition for in §2 racially equal opportunity “to guarantee breach of § “The representatives 42 U. S. C. 1973: choice,” of . . elect . challenge making minority group must such a reason that a sufficiently large is ... matter, that it show, as a threshold potential possess elect minority voters this: Unless challenged representatives structure in the absence injured practice, they that have or cannot claim to been (emphasis practice.” de- S., 50, 478 U. n. structure or leted); (O’Connor, concurring in id., J., see at 90, also n. (“[I]f enough group large judgment) minority that is not a voting majority single-member can in a district constitute support probably forthcoming in that would be show white that would enable the elec- some such district to an extent prefer, minority tion of the candidates its members group appear at least that, would to have demonstrated voting strength, it would be able under this measure of its choice”). empha- we Hence, its to elect some candidates of § political process analysis an 2 of the should sized that under (majority opinion); Id., n. 15 see be “‘functional.’” (“[T]he Gingles supra, Voinovich, also factors cannot regard applied mechanically and without to the nature of be claim”). surprising it that we have looked to So is considering political-primary third data in the second and voting. Gingles whether there is racial bloc conditions, to see § might satisfy “ability the 2 to elect” recognize minority group 3 I circum requirement ways, I do not mean to rule out other other minority by 2. A might required be stances which a coalition district for slightly nonpartisan than 50% of the elections group less electorate preferred it might, example, show that can elect its board local-school from of other owing support candidates to consistent crossover members Dist., Valdespino Heights Independent v. Alamo School Cf. groups. (CA5 (2000). 1999), denied, U. F. 3d 850-851 cert. S. g., (1997); See, e. Johnson, 74, 91-92 Abrams v. 521 U. S. Gin gles, supra, 52-54, 59-60. pertinence minority primary of voters’ role in a is ob party’s primary repre

vious: a dominant can determine the ultimately recognized years ago sentative as elected, we evaluating importance primary the constitutional of elec tions. See Classic, United States v. 313 U. S. 299, 318-319 (1941) (“Where the primary state law has made the an inte gral part procedure of or choice, where in fact the primary effectively right choice, controls the of the elec tor have primary his ballot counted at the is likewise in right protected by cluded in the I, Here,. Article 2.. .. .. right representative by choose a is in fact controlled primary alleged because, as is in the indictment, the choice primary of candidates at the Democratic determines (“[A] representative”); the choice of the elected id., at 320 primary necessary election which step involves a in the choice representatives candidates election as in Con gress, and which in the circumstances this case controls meaning is an choice, election within the of the constitu provision”); Allwright, tional Smith v. U. S. (1944)(noting “[t]he fusing by primary the Classic case of the general single instrumentality elections into a for choice (“It officers”); may postu id., at 661-662 now be taken as right late that primary vote such a for the nomina by tion of candidates without discrimination the State, like right general right by to vote is a election, secured great privi Constitution.... Under our Constitution the lege may of the ballot not be denied a man the State color”).4 because of predeces- his These conclusions of our Jones, (“In Democratic 567, 575 (2000) Cf. Party 530 U. S. California no area is the political right association’s to exclude important more than process in the of selecting process its nominee. That often determines the party’s positions on the significant public policy day, most issues and even positions when those are predetermined it is the nominee who

488 showing scholarship electoral suc- fit with recent

sors by taking predictable ac- adequately by is minorities cess things. among other primaries elections, as well as of count Drawing Handley, Effective Minor- Grofman, Lublin, & See Empirical ity Conceptual and Some Framework A Districts: (2000-2001).5 L. Rev. 1383 Evidence, 79 N. C. § step accordingly reject at one this 2 claim not

I would by jumping it Gingles, I dismiss this record would nor on totality §2 the to be decided on issue to the ultimate Grandy, 1009-1022, and S.,U. at see De 512 circumstances, plaintiffs show that sub- cannot that the black determine right merging violated their them in the five new districts political process equal opportunity participate in to plurality, on the The of their choice. and elect candidates minority accept contrary, willing that the the conclusion § they nothing cognizable 2 because could lost under voters degree guaranteed a candidate of control that not show the ante, at in the old 24. 443-446. of their choice See by great weight placing plurality accepts this conclusion perennially con- Frost, the successful on the fact that Martin e.g., gressional See, white. candidate in District was (no findings in Court’s clear error District ante, 444-445 pri- in “no Black has ever filed a Democratic candidate Perry, mary against Supp. 2d Frost,” 298 F. Session v. (ED 2004) curiam), (per “[w]e have no measure Tex. Anglo primary if would be in a Democratic of what turnout ibid.)', by opposed ante, candidate,” a Black Frost were (no testimony in reliance on clear error District Court’s Congresswoman that “District 24 Eddie Bernice Johnson in it general winning electorate party’s becomes ambassador views”). party’s over to the ostensibly be such electoral success One must careful about what rules, shows; constrained, say, party primary if the choices are minority may truly their candidate of primary voters’ choice be choice, Note, Districts, Party Gingles In Limbo: Coalitional Primaries see (2005). Claims, Y. Manageable Vote Dilution 80 N. U. L. Rev. (Martin Anglo was lar) particu- drawn for an Democrat Frost, 1991”). responses. “[u]nder There are at least two First, 2, it is representative the status of the candidate as the chosen aof particular group, racial not the candidate, race that is deleted). important.” Gingles, supra, (emphasis Sec- convincingly ond, Frost was shown to have been “chosen representative” of black voters in old District In the primary absence of a unchallenged black-white contest, the primary evidence is that black voters dominated a that con- sistently ultimately nominated the same and successful can- speculation didate; it takes more than the to rebut demon- stration that Frost was the candidate of choice of the black party voters.6 any There is no indication that rules or other rigged primary any device the aspirants ballot so as to bar minority preferred, supra, voters would have see 5,n. and the overwhelming uncontroverted and evidence is that strongly supported by minority was Frost voters after more sedulously than considering two decades of minority inter- (Frost’s App. rating ests, voting of 94% on his record from the National Association for the Advancement of Col- People ored exceeded the scores of all other members congressional delegation, Texas including Hispanic black and major parties); (testimony members by both id., at 218-219 political-science expert State’s that Frost is the African- choice); (testimony by Americans’ id., candidate of Kirk, Ron mayor an African-American former of Dallas and gained very strong U. S. Senate candidate, that Frost “has support among base of African-American ... voters because strong voting [in areas]” of his records numerous and has following “an respect among incredible and amount of (Kirk’s community”); African-American id., at 240-241 testi- 6Judge properly Ward gone noted that the fact that Frost has unchal lenged may favorably “reflect on his record” of responding to the concerns Perry, See Session minorities Supp. district. F. 2d (ED 2004) Tex. (opinion part dissenting concurring part). and because a contested primary has never had that Frost

mony community, African-American he is beloved himself, could not better candidate, including a black possibly with the his rapport because of strong in a Frost primary pre- id., by county at 242-243 (testimony community); black candi- been the favored that Frost has cinct administrator there have community date of the African-American he “serves to him because been no primary challenges interests”).7 [African-American] whether at this I would or could decide point

It not that district and composition the elimination of the prior rules The other gatekeeping new one violates Gingles third, to the attention considered, have be particular since a claim to S., see 478 U. bloc majority voting, come And after that would is involved.8 coalition district of circumstances. See the ultimate totality analysis De at 1009-1022. Grandy, supra,

I no further here than to hold enquiry would go of the Fifth be or conducted in should not truncated by light event, electing in any history prophecy In or success although a minority § when powerful liability candidates choiceis a touchstone of mani packed, only is not the populations are cracked or electoral success in see equal participate political process, festation of to opportunity S., opportunity of that Grandy, De 512 U. n. 11. The diminution party’s by taking minority previously voters who dominated the dominant primary readily in a new district is not discounted submerging and them old by primary of a contest in the speculating on the effects black-white district. way putative is when a claim of this third condition understood implications will for the identification coalition district made have say Suffice it Gingles candidate of choice under the first condition. coalition may dealing the criteria the same when with here that be majority-minority populations. districts as in cases of districts with All. in analysis majority-minority districts Gin aspects of our established in rethought analyzing ostensible gles progeny may and its have be coalition districts. by analysis rule,9

Circuit’s 50% or the candidate-of-choice §2 rejected. just I would return the claim on old District already might- Court, to the District which has so labored ily three-judge on these cases. All the of the members court again by would be free to look untethered the 50% barrier, Judge particular, and opportunity inWard, would have the develop his reasons unconstrained the Circuit’s 50% rightly rule, which he took to limit his consideration of the Supp. (opinion claim, Session, see 2d, 298 F. at 528-531 con- curring part dissenting part). in and in

Justice Breyer, in in and concurring part dissenting part. join opinion.

I Parts II-A and III of the Court’s I also join opinion concurring Parts I II and of Justice Stevens’ part dissenting part. in (between thing, timing

For redistricting one periods), departure census the radical from traditional boundary-drawing criteria, the other evidence to which opinion refers Parts I and II of his Justice Stevens partisan advantage” make clear that a “desire to maximize purpose was the promulgate “sole behind the decision to Compare, Plan g., App. Ante, 1374C.” e. 176-178; J.), (opinion ante, at 452-455, 458-459 of Stevens, (2004) Jubelirer, Vieth v. 541 U. 366-367 (Breyer, S. dissenting). J., thing,

For another the evidence to which Justice Ste- opinion refers Part III his demonstrates that vens 9Notably, 1374C, under the Texas Legislature’s Plan there are three undisputed districts where African-Americans tend to elect their candi dates of choice. African-Americans at most compose voting-age a citizen (50.6%) Session, 30, supra, majority three, in one of the at see 515; there, 48.6%, even expert pegged App. the State’s the at percentage event, others, In any 185-186. the Districts 9 and are coalition dis tricts, with voting-age populations African-American citizen of 46.9% and Id., respectively. 48.6% at 184-185. advantage,” ante, partisan

plan’s effort “to maximize exaggerate only the favored encompasses to an effort not majority produce majority a party’s but also electoral party re- representatives the favored congressional even if Compare ante, at minority popular only votes. a ceives expert), (plaintiffs’ App. (opinion Stevens, J.), 465-468 (State’s supra, at 360 expert), Vieth, id., dissenting). (Breyer, J., Party, Republican plan

Finally, entrenches because simply successfully an effort it as defend cannot State gerry- Party’s political previous the Democratic neutralize plan justify on non- tried to Nor has State mander. legislative grounds, partisan achieve either as an effort to legislative exaggeration stability by avoiding of small shifts (same), preferences, Vieth, or party S., 541 U. at 359 in see any way. in other demonstrated,” sum,

In “the risk of entrenchment rendered] [have] “partisan the traditional considerations justifica- district-drawing compromises “no irrelevant,” and advantage party Id., found.” can be tion other than (same). overwhelmingly plan re- record reveals a The line-drawing unjustified purely partisan upon use of lies seriously likely harmful and which will have considerations consequences. reasons, For these I believe electoral Ibid. plan entirety Equal Clause. in its violates the Protection Alito with whom Justice Roberts, Chief Justice in the concurring judgment part, joins, concurring part, and dissenting part. opinion. join plurality re- I With

I Parts and IV of the appel- gard agree II, I with the determination to Part identifying provided lants have not “a reliable standard gerrymanders.” Ante, political at 423. unconstitutional question any is, exists—that whether such standard presents challenge political gerrymander whether controversy—has argued justiciable in these or not been case position question, which cases. I therefore take no on that

493 has divided the Court, Jubelirer, see Vieth v. U. S. (2004), join disposition and I the Court’s in Part II without specifying appellants whether have failed to state a claim granted, present on which relief can be or have failed to justiciable controversy. must,

I opin- however, dissent from Part III of the Court’s According ion. findings, to the District Court’s factual drawing State’s of district lines in south and west Texas caused the area to move from five out of seven effective La- opportunity congressional tino districts, with an additional “moving” district in that direction, to six out of seven effec- opportunity tive Latino Perry, districts. See Session v. (ED 2004) curiam). Supp. F. 2d (per 451, 489, 503-504 Tex. The end result is up that while Latinos make 58% of the voting-age population citizen they in the area, control 85% (six seven) of of plan. the districts under the State’s findings,

In the majority face of these nonetheless con- plan cludes that voting State’s somehow dilutes the strength Voting Rights Latinos in violation 2of majority Act of surprising 1965. The reaches its result be- cause it finds that Latino voters in one of the State’s Latino opportunity insufficiently districts—District 25—are com- pact, they in that groups, consist two different one from around the Rio Grande and another from around Austin. According majority, may to the this it make more difficult Latino-preferred for certain candidates to be elected from though up district—even Latino voters make 55% the voting-age population citizen in the district and vote as Id., bloc. majority prefers 492, 126, at n. 503. The old Dis- despite trict the District Court determination that new District 25 opportunity is “a more effective Latino district Congressional than Id., District 23 had been.” 503; at see id., 489,498-499. at The District Court based that determi- nation on a regression analysis careful examination of show- ing Hispanic-preferred every [wouldwin] “the candidate primary general election examined id., in District 25,” added), (emphasis compared only partial to the success enjoyed 23, id., in former candidates

such 489, 496. fact- majority careful the District Court’s

The dismisses experienced judges ground finding did that the on the “compact” for properly was consider whether District § Court Ante, But the District purposes at 430-431. of 2. carefully clearly that the court opinion demonstrates itself minority group compactness in District of the considered says majority just it should have. as the highlighted very recognized of District features Court unambiguously majority under the to- concluded, tality effective was an circumstances, the district of § opportunity of 2 in the district, and that no violation Latino had shown. area been factfinding, escape the ma- District Court’s

Unable jority position maintaining that its is left in the awkward § theory important compactness under 2 than is more about Latino-preferred prospects success for the actual of electoral plan. apportionment And that candidates under State’s any theory this before has or a novel one to boot. Never redistricting plan under court struck down a other State’s § ground plan the maximum num- 2, on the that the achieves style possible majority-minority districts, on but loses ber of minority points, voters in one of those districts in that the minority “compact” would be in an- are not as as the voters differently. a basis were the lines drawn Such other district litigation liability voting rights pushes into a new whole Voting the concern of the area—an area far removed from equal Rights minority opportu- an Act to ensure voters nity representatives “to elect of their choice.” U. S. C. 1973(b). §

I § alleging abridgement plaintiff Under “a denial or right [a] on account citizen of the United States vote 1973(a), § totality on the show, of race or must “based color,” circumstances,” political processes leading “that the to nomination or political election in the State or subdivision are not equally open participation by members of a class of (a). protected by citizens subsection .. in that its mem- opportunity bers have less than other members of the participate political process electorate to in the and to 1973(b). representatives elect of their choice.” (1986), Thornburg Gingles, In 478 U. S. 30 we found that a plaintiff challenging the State’s use of multimember districts by showing replacement could meet this standard multimember single-member district with several districts likely provide minority would voters in at some of least those single-member ability districts “the representa- to ... elect tives of require- Id., their choice.” at 48. The basis for this simple: ment was possible If no districts were in which mi- nority prospects voters had success, electoral then the use hardly of multimember districts could be said to thwart mi- nority § voting power (“Minority under 2. ibid. See voters who contend districting that multimember form of vio- prove lates 2 must that the use of a multimember electoral operates structure ability to minimize or cancel out their to candidates”). preferred elect their generation voting litigation rights

The next confirmed “manipulation [single-member] district lines” could minority voting power packed also dilute minority if it voters they might in a few dispersed districts when more, control or among they them might districts when control some. Voin- (1993). Again Quilter, ovich v. 146, 507 U. S. 153-154 application Gingles basis for config- this was clear: A only minority voting uration of district lines could dilute strength configuration minority if under another voters had prospects. involving single- better electoral Thus cases question districts, member was whether an additional majority-minority district created, should be see Abrams v. (1997); Johnson, 521 Emison, U. 91-92 S. Growe v. (1993), U. S. or whether additional influence districts majority-minority existing supplement should be created supra, at 154. Voinovich, districts, see §2 Gingles itself, that a emphasized, since have thus We likely apportionment that is plaintiff at least show an must compared minority to the exist- perform voters, better (O’Connor, concurring in ing J., S., one. See U. (“[T]he minority judgment) electoral success relative lack of compared challenged plan, with the success when under a predicted the measure of undiluted under that would be mi- strength employing, nority voting can constitute the court dilution”). unsurprisingly, in powerful And of vote evidence districting single-member we have schemes, the context of require possibility invariably of addi- understood this minority might single-member voters districts tional control. (1994), Grandy, reaffirmed this v. De 512 U. S. 997

Johnson Grandy plaintiffs understanding. that, in De claimed Hispanic majority by reducing in some size of the dis- Hispanic-majority cre- districts could be tricts, additional plan that did not Id., at 1008. The defended ated. State ground proposed districts, so on the that the additional do containing Hispanic majorities, would “lack while nominal Hispanic enough of their choice to elect candidates voters groups,” other ethnic thus without cross-over votes from § strength Hispanic voting Ibid. under 2. could not bolster keeping requirement plaintiff that a 2 must In with the present apportionment better that an would show alternative minority-preferred prospects candidates, the Court set for existing challenge to an set of out the condition that a possibility single-member of “creat- must show the districts reasonably compact ing existing of more than the number minority large population sufficiently to elect with a districts Grandy confirmed that candidates of its Ibid. De choice.” minority up simply proposing a that divides set of districts population chosen, has in a manner than the State different gain minority opportunity without a districts, does not “only show vote dilution, but that lines have could been drawn Id., elsewhere.” 1015. Latino-majority

Here the District Court found that six dis- support. tricts were all that south and west Texas could provides just predecessor Plan 1374C six such districts, as its precedent did. making fact, This combined with our clear § plaintiffs that 2 pros- must show an alternative with better pects minority for success, should have resulted in affirm- ance of the District Court decision on vote dilution in south (“[T]he Gingles, and west supra, clearly- Texas. See 52(a) [Federal of Procedure] erroneous test Rule of Civil is appropriate appellate the finding for standard review of [Wjhether vote political process equally dilution. . . . is open minority peculiarly dependent upon voters ... (internal quotation omitted)); Rogers facts” Lodge, marks (1982). 613, 622, U. S. majority The finding avoids this result fault analysis Latino-majority District Court’s of one of the dis- plan. tricts in the State’s That district—District 25—is like other plan, prede- districts the State’s like districts in the plan, cessor plaintiffs’ proposed and like districts in the plan, joins population seven-district in that it concentrations around the border area with others closer the center of “ explained State. The District Court that such 'bacon- ” strip’ given geography inevitable, districts are and de- mography Supp. that area of Session, the State. 298 F. 2d, 486-487, 490, 491, n. majority, however, criticizes the District Court be- compactness

cause its consideration of District 25 §2 According majority, under was deficient. to the analyzed only equal protection “the court the issue purposes. equal protection In compactness context, focuses on the contours district lines to determine predominant drawing whether race was the factor in § injury by is vote the contrast, 2, lines. Under those inquiry compactness different embraces dilution, so the omitted). (citation at 433 Ante, considerations.” description of the District simply an inaccurate This is expressly considered opinion. District Court The Court’s enough §2 from is clear compactness That in the context. opinion quotes majority District Court’s the fact that the compactness it believes elaborating on the standard (quot- applied. ante, at 424 have See should District Court 502); (quoting Session, supra, ante, at 434 ing Session, at 502). majority very quoted passage supra, The ” “ the communi- and interests’ of the different ‘needs about appeared in the District 25, ante, at ties in District recog- opinion precisely the District Court because Court to which concerns “bear on extent nized that those functionally districts”—including ef- 25—“are District new important opportunity to under- districts, fective Latino standing 1374C,” Ses- results from Plan whether dilution added); (emphasis Supp. see also ibid. sion, 2d, 298 F. (noting communi- and interests of Latino different “needs “‘bacon-strip’” concluding that districts and ties” in the newly- “[t]he mean that the whether these features issue is strength configured voting of Latinos” districts dilute the added)). (emphasis compactness in two the District addressed

Indeed, Court respect opinion: in Part VI-C with different sections of its respect under and in Part VI-D §2, vote dilution drawing predominated lines, for district to whether race analysis. purposes equal protection District The Court considering explained, differences in Part even VI-C bacon-strip districts communities in the between the Latino 25) purposes (including of vote dilution under protec- plaintiffs’ equal on the how the same concerns bear Id., 502,n. 168. in Part claim, tion discussed Vl-D. discussing majority “the relative District Court for faults the only perti- that is lines,” because smoothness of district equal protection nent in ante, 432, context, but it was only equal protection in the context that the District Court mentioned the relative smoothness of district lines. See 298 Supp. discussing F. compactness 2d, at 506-508. In respect VI-C, Part to vote dilution under the Dis- precisely trict majority Court says considered what the it should have: the diverse needs and interests of the different Latino majority, communities in the district. Unlike the properly however, the recognized District Court that the §2 question under was “whether these features mean that newly-configured voting strength districts dilute the Id., Latinos.” at 502. question

The District Court’s answer to that was unambiguous: Congressional

“Witnesses testified that Districts 15 and span 25 would Hidalgo County colonias in and suburban areas in Central Texas, but the witnesses testified, and regression data show, both districts are effec- opportunity tive Latino Hispanie- districts, with the preferred every winning primary general candidate and election Id., examined District 25.” at 503. emphasized The District point again Court this later on: newly-configured “The Districts 15, 25, 27, and 28 cover territory more and travel farther north than did the cor- responding districts in Plan 1151C. The districts com- part bine more voters from the central of the State with voters from the border cities than was the case in Plan population regression analyses, 1151C. data, and testimony expert of both witnesses and witnesses knowledgeable politics actually about how in the works finding area Congressional lead to the that in Districts likely every pri- Latino voters will control mary general Id., election outcome.” at 503-504. inexplicable majority I it pas- find how the can read these sages finding and state that the District Court reached its accounting for 25 “without

on the effectiveness problems.” compactness consequences itsof the detrimental question” majority the District does “not Ante, 442. The find- to reach the parsing evidence of the statistical Court’s opportunity dis- ing effective Latino District 25 was an rejects majority Ante, nonetheless at 434. But the trict. practical “[t]he theory finding, that based on its own that drawing distant, dis- cover two consequence of a district to groups unable will be or both parate communities is that one goals,” the find- political ibid., and because achieve their to assumption” ing “prohibited voters of the on the rests political inter- share the same alike, race “think same will polls,” prefer ante, candidates at the ests, and will the same omitted). (internal important quotation It is marks at 433 following, perfectly out of fairness to be clear about the No one has made if for no other reason: the District Court any “assumptions” 25 will vote voters in District about how background. Court; ethnic Not District based on their assumptions trials, trial. At not this dissent. There was a voting rights give way cases, In and assertions to facts. analyses past through regression typically that is done voting analyses the Lat- Here, showed that records. those every gen- primary prevailed ino candidate of choice Session, 298 eral election examined for District 25. See plaintiffs’ expert Supp. con- Indeed, F. at 499-500. 2d, “have an effec- ceded that in District 25 Latino voters primary opportunity outcomes in both tive to control far general Court, District Id., at elections.” 500. “assum[ing]” in District 25 would from that Latino voters they polls,” “prefer at concluded the same candidate likely historic on statistical evidence of were do so based voting patterns. majority

Contrary in the to the erroneous statements simply “aggre- opinion, judges did not the District Court ” minority gate] Ante, measure effectiveness. voters to simply rely pos- They on the “mathematical did not voting preferred sibility” minority for the same voters ante, at it candidate, 435, and is a disservice to them to state majority indulging It

otherwise. is the that is in unwar- “assumption^]” contrary voting, ranted to the facts about carefully found at trial based on considered evidence. blushingly preferred by What is is that district ironic majority—former District 23—suffers from same majority except “flaw” the ascribes to District to a greater degree. majority While the decries District 25 separated by because the Latino communities there are geographical “enormous distance,” ibid., and are “hundreds apart,” joined of miles ante, Latino communities voting majority nearly form the in old are twice apart. as far Old District 23 runs El Paso, “from over 500 miles, into San Antonio and down into Laredo. It covers longer much distance . than . . the 300 miles from Travis to [in App. 25].” (testimony

McAllen District of T. Giber son); Giberson) (“[District (expert report id., see of T. any Congressional plan recent extends from the out dipping skirts of El Paso Laredo, down to into San Antonio miles”). spanning and significance 540 So much for the geographical perhaps majority “enormous distance.” Or willing is to “assume” that Latinos around San have Antonio common interests with those on the Grande than Rio rather though those Austin, around even San Antonio and Austin (less good are a apart) closer bit to each other than 80 miles than either is to the Rio Grande.*

*The majority’s fig leaf after in stressing the distances involved District 25—while ignoring greater ones in note former District 23—is to that “it is the enormous geographical separating distance the Austin and communities, coupled disparate Mexican-border with the needs inter ests of populations—not these either factor alone—that District renders Ante, 25 for 2 noncompact purposes.” at Of fac single course no tor is determinative because the ultimate question whether the district is an majority-minority opportunity effective was a trial district. There that; on was, the District Court found that former Dis District while Session perform trict 23 opportunity “did not as an effective district.” curiam). (ED 2004) Perry, 451 ,496 (per Supp. 298 F. The major 2d Tex. ity notes challenge finding compactness that there was no to or on the pro- expert on evidence considered District

The Court District 25 would that jected and concluded election returns voters, indeed likely impeccably better perform for Latino Supp. 2d, at Session, 298 F. District 23. See than former District Court also concluded 503-504, 488, 489, 496. give Latino vot- in Plan 1374Cwould other districts that the preferred opportunity their candi- to elect favorable ers a (observing parties’ agreement that id., dates. See clearly provide effec- in Plan 1374C “do Districts 16 and 20 majorities”); age population id., at voting tive Latino citizen (“Latino every likely primary and control voters will “every primary in general District election outcome” every general outcome” Dis- almost election outcome and 1374C). light find- In of these 15 and under Plan tricts ings, “compared to Plan concluded that District Court impermissible reduc- Plaintiffs have not shown an 1151C ... opportunities for Latino electoral control tion in effective opportunities participation political for Latino or in process.” Ibid. holding backdrop, majority’s against this

Viewed §2 A has de- Plan violates amounts this: State 1374C minority equal opportunity “participate nied voters representatives political process and to elect of their § 1973(b), plan when the districts in the U. S. choice,” C. prospects created have better the success State has 28, ante, 435—certainly compared to old District 25—but “[ujntil because, majority dispute, as the does not presumably that was §2 today, compactness has lack of under suggested no court ever a a has to create in the first might invalidate district State chosen infra, instance,” in majority that Latino voters old 505. The asserts identity,” doing so political an “efficacious while District had found ante, 25, 435, challenge a in but the would be such voters They over the former in this group advantage regard: latter has distinct vote to a (expert re actually significantly greater App. extent. See Gaddie) (for La R. in estimated port of Governor and Senate races 51%, 44% to 41.3% and compared tino turnout for District was 46% 23). for District

minority-preferred plan, candidates than an alternative sim- ply because one of the State’s districts combines different minority any likely communities, which, event, in are to vote controlling as a It me bloc. baffles how this could be vote contrary dilution, let alone how the District Court’s conclu- clearly sion could be erroneous.

II majority wrong The at the arrives resolution because it begins analysis wrong place. majority its in the de- Gingles “[considering” clares that a violation is made out former District 23 “in isolation,” and chides the State for suggesting remedy “by creating that it this violation can. new offsetting opportunity District 25 as an Ante, district.” “§2 According majority, at 429. to the does not forbid the noncompact majority-minority creation of a district,” but “[t]he noncompact remedy district cannot... a violation else- where in the Ante, State.” at 430. §

The issue, however, is not whether a 2 violation Dis- trict “in isolation,” viewed can be remedied the cre- opportunity ation of a Latino district in District 25. When question majority-minority is where a fixed number of analysis begin districts should be located, should never by asking Gingles whether violation can be made out any one district “in In circumstances, isolation.” these it is always possible minority population to look at one area of Gingles. “in isolation” and see “violation” of 2 under For example, group, if a State drew three districts in a with 60% minority voting-age population two, the first and 40% in readily opportunities the third, the 40% can claim that their being they grouped are thwarted because were not with an minority additional 20% of voters from one of the other dis- remaining minority tricts. But the voters in the other dis- precisely minority tricts would have the same claim if voters join were shifted from their districts to De the 40%. See (“[S]ome Grandy, dividing by S., 512 U. at 1015-1016 district 504 virtually inevitable combining them is within

lines size”). is any group That population of substantial befalls minority explained why no individual has Court majority-minority dis- right included in a has to be voter (1996) 917, and n. Hunt, 517 S. U. trict. See Shaw (Shaw II); Any dissenting). other J., id., (Stevens, incompatible caught approach between would leave State minority by groups Session, voters. See claims different (“[TJhere sufficiently supra, dense and com- is neither partic- general Hispanic population in pact population nor adding retaining 28 and support” former District to ular 25). District § Gingles inquiry vio- 2 not whether a correct under respect district “in isola- to one

lation can be made out challenged line-drawing in the but instead whether tion,” minority strength. proper voting A dilutes area as whole also lines in the area as a whole demon- focus on the district majority’s why Vera, S. reliance on Bush v. 517 U. strates (1996), misplaced. II and Shaw is rejected compact- cases, on the basis of lack of In those we against equal protection ness districts that a State defended necessary grounds they scrutiny to were strict on the supra, (plurality Vera, at 977-981 avoid a violation. See opinion); supra, But those cases II, Shaw 916-918. §2 plaintiff proceeding suggested under could never that a prove liability. rely compactness dis- And the on lack of nothing To like District 25 here. tricts those cases were farflung they incorporated multiple, pock- begin small, with, by minority population, ignoring ets and did so bound- (Ap- political supra, Vera, at 987-989 aries of subdivisions. districts); (depicting pendices plurality opinion) Shaw A-C districts). supra, (describing Dis- Here the II, at 902-903 long and narrow but more normal trict Court found that the shape districts both 25 was shared other plan predecessor plan—not mention and the state demog- plaintiffs’ proposed plan—and resulted from own raphy geography south and Session, of west Texas. See Supp. 487-488, 491, 298 F. 2d, at and n. And none of minority voters the Vera and II Shaw districts could part Gingles-compliant have formed Vera, a district, see supra, (plurality opinion) (remarking of one of the grab appar- districts at issue that it “reaches out to small and ently minority isolated which, communities based on the evi- presented, possibly part dence compact could form of a district”); majority-minority II, Shaw S.,U. at 916-917 (describing challenged way district as “in no coincident district”); compact Gingles with the while here no one dis- putes that at least the Latino voters in the border area of larger part 25—the concentration—must be of a Latino-majority placed district if six are to be in south and west Texas. not,

This is drawing therefore, a case of the State a §2 majority-minority “anywhere,” district a once violation has been established Id., elsewhere in the State. at 917. question is instead whether the State has some latitude deciding place possible where to the maximum number of majority-minority districts, when one of those districts con- proportion minority tains substantial voters who must majority-minority in a be district if the maximum number is to be created at all. today, suggested

Until no court has ever that lack of com- §2 pactness might under invalidate a district that a State “geographi- has chosen to create in the first instance. The cal!] compact[ness]” minority population previously of a has only plaintiff’s Gingles, been an element of the case. See say, plaintiff 478 S.,U. at 49-50. That is to the 2 bears the demonstrating group minority burden of that “the ... sufficiently large geographically compact to constitute majority single-member in a Id., district.” 50. Thus compactness, it when has been invoked courts lower §2 applied claims, defeat has been to a remedial district a plaintiff proposes. g., Sensley See, Albritton, e. v. 385 F. 3d (CA5 2004); Mallory Ohio, F. 3d v.

591, 596-597 (CA6 1999); County Thurston, F. 129 3d Stabler v. 382-383 1997). (CA8 say we have had the most Indeed, 1015, 1025 inquiry Gingles aspect is to compactness about the §2a the district profess it was met when doubt whether “oddly shaped.” Emison, proposed plaintiff Growe was §2 liability rejected even we then, 41. And S., 507 U. shape, but because no evidence of the odd not because voting majority Id., at 41-42. had been submitted. bloc obligation freestanding compactness imposing from Far emphasized repeatedly that “States States, we have on drawing comply with in districts to retain broad discretion §2 supra, n. that II, 917, 9, of at §2,” the mandate Shaw particular types per prohibitions against imposes itself “no se at 155. S., 507 U. We districts,” Quilter, of Voinovich “flexibility” complying have that the States retain said rights enforcing voting obligations courts that “federal §2 majority’s supra, at The intrusion Vera, lack.” § authority line-drawing, of when the lines into under majority- already possible of achieve the maximum number just minority opportunity suggests is that all this districts, so much hollow rhetoric. “one-way whereby plain- majority rule finds fault in a compactness ante, not,” need at

tiffs must show but States contrary explain bothering rule of 431, without how its equivalence litigating plaintiffs and the elected between representatives comports people legislating with our of repeated concerning the and flexibil- assurances discretion ity part all, after of the Vot- is, left the States. Section ing Rights Compactness Rights Act, The word not the Act. “compactness” appears nor in the §2, nowhere in even agreed-upon legislative history. Gingles, supra, at 36- See §2 compactness precedence 37. To bestow on such totality inquiry is test that the statute the antithesis of the (“[T]he contemplates. Grandy, S., ulti- De U. inequality opportunity equality mate or of conclusions about by Congress judgments resting were intended to be on com- facts”). prehensive, canvassing Sug- limited, relevant gesting weight given that determinative should have been §2 understanding this one factor contravenes our of how analysis proceeds, Gingles, (quoting S., see 478 U. state- §2 legislative history ment from the “‘there no requirement any particular proved, number of factors be other’”), majority way point or that a of them one or the particularly proper when the standard of review for the Dis- § judgment trict Court’s ultimate error, under 2 is clear see id., at 78-79. § plaintiff legally protected compact-

A has no interest apart ness, equal op- from how deviations it from dilute the portunity minority representatives voters “to elect 1973(b). their choice.” And the District Court found that any opportunity by on effect this caused the different “needs and interests” of the Latino voters within District 25 atwas despite they least offset that, fact differences, these likely prefer polls. were the same candidates This finding assumptions. was based on the evidence, not competing

Whatever the merits of old District 23 and new margins, judging District 25 at the between those two majority-minority surely responsibility districts is legislature, Georgia not the See courts. Ashcroft, (2003). majority’s squeamishness 461, U. S. about supposed challenge facing Latino-preferred the a candidate 25—having appeal in District to to Latino voters near the challenges Rio Grande and those near Austin—is not unlike country part candidates face time, around the all the as of a healthy political process. particular It is in not unlike the challenge by Latino-preferred faced candidate in the dis- majority, trict favored the former District who must appeal to Latino voters both in in San Antonio and El Paso, away. “[Minority 540 miles voters are not immune from obligation pull, political haul, to and trade to find common ground, slighted applying the virtue of not be which is to waning in American of racism hasten the meant to

a statute has Grandy, As the at 1020. Court politics.” S., 512 U. De § opportu- right equality 2 is of explained, of “the ultimate minority- guarantee for nity, electoral success not a of Id., n. preferred of race.” candidates whatever opportunity a State Holding denied because is that such popula- voting-age minority citizen 55% district with draws (but percentage keeping a similar than one with tion, rather turnout) consistently any elect event that did not lower meaning gives minority-preferred candidates, an unfamiliar “opportunity.” word Ill Gingles finding plaintiff factors, Even if a satisfies automatically In De follow. vote dilution under does aspect Grandy, important of the to- we identified another §2: “minority tality inquiry form ef- whether voters under roughly voting majorities in a number of districts fective minority respective proportional voters’ shares finding voting-age population.” S., A 512 U. at 1000. § liability proportionality under this standard can defeat Gingles made In De even if a clear violation has been out. Grandy proportionality” itself, we that “substantial found a claim that the lines at issue “diluted the defeated district by Hispanic 1014-1015, even voters,” S., votes cast 512 U. possibility assuming plaintiffs shown “the had creating existing reasonably more than the number of com- sufficiently minority pact large population districts with a (emphasis choice,” id., of its at 1008-1009 elect candidates added).

The District that south and west Texas Court determined appropriate geographic frame reference for ana- was only lyzing proportionality: is the “If South and West Texas Gingles applied met, area in can be as Plaintiffs which measuring proportional- argue, it is area also the relevant ity.” Supp. court ex- Session, 2d, 298 F. at 494. As the “[ljower plained, analyzed ‘proportionality’ courts that have Grandy using in the De sense have been consistent in same frame of reference for that factor and for the factors set cases). Gingles.” (citing forth in Id., 493-494, and n. In south and west Texas, Latinos constitute 58% of the (six seven) population relevant and control 85% out of congressional region. in seats that That includes District 25, because the District found, Court clear error, without likely that Latino every voters “will district control primary general election Id., outcome.” at 504. But counting even not opportunity that district as a Latino dis- majority’s misplaced trict, compactness because of the con- cerns, congres- Latinos in south and west Texas still control (five markedly greater sional proportion—71% seats out seven)—than population their share there. In only Gingles words, other in the area in which the factors enjoy can be political satisfied, power Latino voters effective 46% strength, disregarding above their numerical or, even opportunity as an district, 24% their above nu- strength. merical Grandy, De See 512 S., U. n. 13. Surely figures suggest equal oppor- these do a denial of tunity participate political process. in the majority’s only answer is to shift the focus state- proportionality. Grandy wide In itself, De the Court re- jected argument proportionality analyzed an should be on a statewide argument basis as “flaw[ed],” because “the they would recast these cases as come in us, order to bar proportionality except scope, consideration of on statewide up litigated whereas until now the dilution claims have been geographical on a smaller Id., scale.” at 1021-1022. The plaintiffs’ same is true here: The 2 claims concern “the im- pact legislative plan voting strength on Latino supra, South (emphasis Texas,” Session, and West added), only they and that is the area of the in which State satisfy Gingles accordingly can factors. That is proper analyzing proportionality. frame of reference in opportunity 6 Latino any level, at a statewide event,

In certainly seem would seats, 19%of the out of or districts the 22% share of Latino “roughly proportional” to the be to District Grandy, supra, at 1000. The population. See De sug- proportionality accordingly that determined Court on a state- dilution, considered gested even the lack of vote majority supra, at The avoids Session, 494. wide basis. by disregarding factual suggestion the District Court’s that opportunity finding effective Latino is an that District 25 given, only improper, for the reasons is district. That not oppor- rejection 25 as a Latino majority’s of District the but flatly its tunity with statewide is inconsistent district also majority’s analyzing proportionality. the Under approach to District 25 end of view, the Latino voters the northern along southern the Latino voters at the with cannot “count” they belong majority, end form an effective because everywhere from Latino voters communities. But different the from areas where of Texas—even those around State purposes Gingles “count” factors are not satisfied—can against calculating proportion which effective Latino plaintiffs power Heads electoral should be measured. win; tails the loses. State

[*] ^{[*] [*]} provides redistricting plan six drawn a The State has majority congressional an effective districts with of seven voting-age it is Texas, in south and west Latino citizens majority provide possible nonetheless more. particular plan of Latino because of the mix faults state majority forming in one of the six districts—a voters and from from around the Rio Grande combination of voters uncritically majority opposed to what the Austin, around as (from majority more assembled views as the more monolithic communities) despite farflung This in old findings, judges express far more familiar from factual be a would the State’s new district are, Texas than we Latino-majority more effective district than old District despite plan any ever was, and fact that would neces- sarily Latino-majority leave some Latino voters outside a district. majority fighting

Whatever the it believes with its hold- ing, ethnicity. it is not vote dilution on the basis of race or I judgments do it not believe is our role to make about which minority purposes mixes of voters count should of form- ing majority a in an electoral district, in the face of factual findings majority-minority that the district is an effective divvying up by district. It is a sordid business, this us race. plan already provides When possible a State’s the maximum majority-minority number of opportunity effective districts, minority enjoys political power and the effective in the area proportion population, well in excess its of the I would play rejig- conclude that the courts have no further role in to § gering the district lines under 2. respectfully

I opinion. dissent from Part III of the Court’s joins, Scalia, with whom Justice and Justice Thomas join whom The Chief and as Justice Alito Justice concurring judgment part Part III, in the in and dissent- ing part. in

I previously expressed, As I have claims of unconstitutional partisan gerrymandering present justiciable do or case controversy. Jubelirer, See Vieth v. 271-306 U. S. (2004) (plurality opinion). Justice Kennedy’s discussion appellants’ ably political-gerrymandering claims demon- yet again, put party judge strates that, no or has forth judicially discernible standard which evaluate them. Unfortunately, opinion ante, See at 413-423. then con- appellants politi- cludes that have failed to as state claim to gerrymandering, cal articulating without ever what elements of such a claim consist of. That is not an avail- disposition appeal. able of this We must either conclude nonjusticiable or else set it, dismiss and

that the claim against appellants’ it. claim and measure forth a standard again dispose of this supra, we Vieth, Instead, at 301. guidance to court way provides lower no claim in a no discernible judges perpetuates a of action with cause appellants’ simply claims as should dismiss content. We nonjusticiable.

II premised appellants’ claims I dismiss vote-dilution would Voting Rights failure to state a Act of 1965for on opinion, in Justice claim, for the reasons set forth Thomas’s joined, Hall, 874, 891-946 I in 512 U. S. which Holder (1994) judgment). concurring As (opinion in Chief concurring p. (opinion in ante, see clear, Justice makes dissenting part), part, part, concurring judgment § jurisprudence ever drift further the Court’s continues minority equal purpose ensuring voters from the Act’s opportunities. electoral

III I of the claims addressed Because find no merit either equal appellants’ Court, I race-based must consider appellants protection focus on the claims. The Forum GI from Latino, of whom are 100,000residents, removal of most They inten- that this action constituted District 23. assert Equal Protection tional dilution in violation of vote appellants contend that the intentional Clause. The Jackson majority-minority 25 as a district was an creation of District impermissible gerrymander. re- The District Court racial challenges jected equal protection to both districts.

A Legisla- appellants contend that the Texas GI Forum living large Latino voters in Webb ture removed a number of diminishing County purpose 23 of La- from District with the Congressional power redis- in that district. tino electoral legislatures, tricting primarily responsibility of state pre- legislative to discern. motives are often difficult We legislatures responsibility sume, moreover, that fulfill this Although a constitutional manner. will State almost al- ways demographics be of aware racial when it it redistricts, does follow from this awareness that State redis- tricted on the basis of See Johnson, race. Miller v. 515 U. S. (1995). 900, 915-916 Thus, courts must “exercise extraordi- nary concluding intentionally caution” that a State has redistricting. used race when Id., Nevertheless, at 916. predominate, when of considerations race dowe not hesitate apply scrutiny Equal the strict that the Protection Clause (1996) requires. g., See, e. Hunt, Shaw v. U. S. (Shaw II); supra, Miller, at 920. legislature congressional

At the time the redrew Texas’s represented by Congressman districts, District 23 was Henry victory margin support among Bonilla, whose steadily eroding. Latinos Perry, had been See Session v. (ED 2004) curiam). Supp. (per 298 F. 2d 488-489 Tex. percent In the 2002 he won with election, less than 52 of the Court), (opinion vote, ante, at 423-424 and received only percent Supp. of the Latino vote, Session, 2d, F. goal at 488. The map District Court found that the adjust protect drawers towas the lines district to imperiled presents undisputed incumbent: “The record Legislature evidence that the desired increase the number Republican Congressional votes cast in District 23 to up shore Bonilla’s base and assist in his reelection.” Ibid. goal, legislature To this achieve extended the district part north to include counties in the central of the State with Republican, adding residents people who voted 100,000 to the comply one-person, district. Then, to with the one-vote re- quirement, legislature heavily the took one-half of Demo- County, part cratic Webb district, the southern neighboring included it in the at Id., district. 488-489. Appellants acknowledge that District the State redrew 23 part protect They argue, at least in however, Bonilla. they that assert an intentional vote-dilution claim that is an- alytically racial-gerrymandering distinct from the claim of 630, 642-649 Reno, 509 U. S. in Shaw v.

the sort at issue (Shaw I). (1993) major on claim focuses A vote-dilution voting power; I claim minority’s a ity’s Shaw to harm a intent purposeful classification instead on the State’s focuses they regardless are of whether race, their individuals (distinguishing vote- helped Id., at 651-652 or hurt. Organizations Williams claim in Jewish dilution United (1977)). to a Carey, In contrast burgh, U. Inc. v. 430 S. appellants a claim the contend, in vote-dilution I claim, Shaw discriminatory racially moti plaintiff that the need not show purpose only predominated, that the invidious vation but Easley motivating Appellants v. Cro contrast a factor. was (2001)(in racial-gerrymandering martie, a 234, 241 532 U. S. simply “[r]ace for the have been a motivation

claim, must predomi drawing majority-minority district, but of a districting motivating legislature’s decision” nant factor (citation omitted)), Ar quotation with and internal marks Housing Development Heights Metropolitan lington v. (1977), Lodge, Corp., Rogers 252, 429 U. 265-266 v. S. (1982). validity of this distinc 613, U. S. Whatever it The District tion, on the facts of these cases is irrelevant. racially legislature that the was not moti Court’s conclusion Supp. plan Session, when 298 F. whole, vated it drew as County, split 509, 2d, id., it dooms and when Webb appellants’ intentional-vote-dilution claim. finding legisla- review a district court’s factual

We Easley, supra, ture’s at 242. motivation for clear error. See will not we are “‘left We overturn conclusion unless been definite and firm conviction that mistake has ” City, 564,573 committed.’ Anderson v. Bessemer 470 U. S. (1985) Gypsum (quoting Co., States United States United (1948)). say the District 333 U. I cannot S. legislative “[t]he clearly moti- Court when it found that erred Congres- County between vation for the division Webb Congressional 28 in Plan sional District 23 and political.” supra, Session, at 509. 1374Cwas

515 Appellants contend that the District Court had evidence voting power. They intent to minimize Latino State’s percentage for note, instance, that the of Latinos in District voting-age population significantly 23’s citizen decreased as redistricting only percent a result of and that 8 Latinos of They point had voted for Bonilla in the last election. also testimony indicating legislature that the was conscious that protecting Bonilla would result in removal of Latinos pleased from the that, district and was after even redistrict- ing, represent slight majority he would a district in which a voting-age of residents was Of the individuals Latino. re- percent voting age moved from 23, of those percent Latinos, were and 87 voted Democrats Id., at 489. The District Court concluded that these individ- they uals were removed because voted for Democrats and against they Bonilla, not Id., 473, because were Latino. finding entirely 508-510. This is in accord with our case recognized jurisdiction may engage law, which has that “a political gerrymandering, happens constitutional if even it so loyal happen that most Democrats black be Democrats and even if the State were conscious that fact.” Hunt v. (1999). Cromartie, 526 Vera, U. S. See also Bush v. (1996) (“If (plurality opinion) U. S. district lines merely they correlate with race because are drawn on the political basis affiliation, race, which correlates there justify”).1 argue Appellants is no racial classification to that evaluating motivation, State’s stated the District 1The District Court not legislature did find that the had two motivations in dividing County, Webb one political, invidious and the other and that political predominated. Rather, accepted explana one it the State’s although tion Latino, they largely individuals moved were were they moved because voted for For against Democrats and Bonilla. this reason, appellants’ argument protection be a incumbent cannot com pelling state interest is off the mark. The District Court found that in protection, race, lay redistricting cumbent not behind the of District 23. non vel scrutiny apply, Strict does the existence therefore compelling state interest irrelevant. by political affiliation improperly conflated race

Court not were recognize moved failing the individuals that just against the Dis- they But Bonilla. voted Democrats, protect purpose towas the State’s that trict Court found Republican district. just to create a safe and not Bonilla, against Bonilla voted residents The fact the redistricted races) entirely they con- (regardless how voted in other of objective. legislature’s political and nonracial the sistent with standard, that the Dis- the clear error find, I cannot under required different conclusion. to reach a trict Court was “Discriminatory purpose . . . im- supra, Hunt, at 551. See or as awareness plies intent as volition intent more than consequences. implies ... se- It that the decisionmaker particular of action at least lected or reaffirmed a course merely spite part of,’ adverse effects of,’ ‘because not ‘in its upon group.” Personnel Administrator an identifiable (1979)(citation, Feeney, in- 256, 279 some v. 442 U. S. Mass. omitted). quotation The District marks, ternal and footnote finding ample supporting its that the cited evidence Court they the district because did not remove Latinos from State compact it The new District 23 is more than were Latinos: Supp. plan, Session, at 2d, old see 298 F. was under the County simply followed interstate division of Webb highway, did not id., at and the district’s “lines 509-510, only jumps explained as twists, make or that can be turns, Anglos, Hispanics or vice- efforts to include or exclude Although put appellants versa,” id., forth alterna- redistricting protected tive that would have Boni- scenarios these would lla, the District Court noted that alternatives increasing legislature’s goal not have furthered Republicans Id., at number of elected statewide. 497. See (“Electoral districting is most dif- Miller, S., U. subject legislatures, so must have ficult the States political judgment necessary to discretion exercise interests”). competing is the District Court’s balance Nor legislators finding impugned by at all the fact that certain pleased represent were Bonilla would continue to a nom- inally Latino-majority district. inquiry, Equal

The ultimate as in all cases under Pro goes purpose, simply tection Clause, State’s to the Washington effect of state Davis, action. See U. S. (1976). Although 229, 238-241 it is true that the effect an support action can an intent, id., inference of see ample any there is evidence here to overcome such inference support political explanation. and to the State’s The Dis trict Court accepting did not commit clear error it. B finding The respect District Court’s with District another applied too, matter. the There, District Court approach Easley, set forth in in which the Court held that may redistricting long race be a motivation in as as it is not predominant S., one. 532 at Bush, U. 241. See also (“[S]o (O’Connor, S.,U. concurring) long they J., as do districting not subordinate traditional criteria to the use of proxy, may race for its intentionally own sake or as a States majority-minority create may districts, and otherwise take race into coming consideration, without under strict scru- tiny”). my legislature In view, however, when a intention- ally majority-minority creates a necessarily district, race is predominant its scrutiny motivation and strict is therefore triggered. joined by id., See at 999-1003 (Thomas, J., concurring judgment). J., Bush, id., As in at Scalia, sufficiently 1002,the State’s concession here establishes that legislature classified individuals on the basis of their race “[T]o when it retrogression drew District 25: avoid §5 compliance Voting Rights achieve with , Act . . . Legislature Hispanic-opportunity chose to create new Hispanics district—new CD 25—which would allow to actu- ally Appellees elect its candidate of choice.” Brief for State similarly Legisla- 106. The District Court found that “the clearly majority ture intended to create a Latino citizen vot- Congressional 25.” population

ing age district my view, the Unquestionably, in supra, Session, at 511. scrutiny. triggers drawing strict of District nar of race was that its use therefore show Texas must compelling interest. See rowly state further a tailored to it created Dis Texas asserts II, S., 517 U. at 908. Shaw § Voting obligations comply 5 of the under with its trict 25 to pro Appellees 105-106. That Rights State Brief for Act. any promulgate jurisdiction to a covered vision forbids procedure” not have practice, it “does or unless “standard, abridg denying purpose effect of or and will not have the §1973c. ing right on of race.” U. S. C. to vote account position prevent “retrogression in the purpose of 5 is to respect exercise of to their effective racial minorities with States, 425 U. S. the electoral franchise.” Beer United (1976). changes District 23 had reduced Since its 130, 141 voting power district, that it in that Texas asserts Latino Latino-opportunity district District 25 as a needed to create § liability. to avoid 5 order compliance past left whether have in the undecided We compelling be a antidiscrimination laws can with federal supra, supra, II, Miller, 921;Shaw state interest. See §5 Voting compliance I 911. would hold that long upheld ago Rights Act can be such an interest. We § proper Congress’s constitutionality of 5 as a exercise § authority 2 of the Fifteenth Amendment to enforce trader abridgment prohibition on the denial or that Amendment’s right Katzenbach, 383 South v. of the to vote. See Carolina (1966). § compel compliance with 5 were not a 301 If U. S. placed impos ling interest, a State could be in the state then position having compliance to with sible choose between § compliance Equal Protection Clause. More 5 and with the § compelling in 5 com over, interest nature State’s recognition previous pliance supported by our in cases remedy necessary past may to identified race be used -where . supra, (citing g., II, at See, e. Shaw 909 discrimination

519 (1989)). Co., Richmond v. J. A. Croson 469, 498-506 488 U. S. § Congress just purpose, enacted 5 for Katzenbach, see supra, supra, provision at 309; Beer, at 140-141, and that applies only jurisdictions history with a of officialdiscrimi §§1973b(b), 42 nation, see U. S. C. 1973c; Richards, Vera v. (SD 1994) Supp. 861 (recounting F. Tex. that, be history cause of its of racial discrimination, Texas became 1975). § jurisdiction proper covered case, In the jurisdiction may compelling therefore, a covered have a in § complying terest in with 5. § support

To compliance its compelling use of aas inter- respect particular redistricting est with to a decision, the State compliance must demonstrate that such was its “‘ac- ” “ purpose’ tual strong and that it had ‘a basis in evidence’ (citations believing,” supra, II, Shaw 908-909, n. omitted), redistricting that the decision at issue was “reason- ably necessary reading application under a constitutional of” the Act, Miller, S., 515 U. at 921.2 Moreover, order narrowly purpose tailor the complying use race to its with the Act, a State cannot use racial considerations to beyond required achieve results comply those that are with (rejecting id., the statute. Department See policy of Justice’s minority that maximization of districts was §5 required by policy and thus that this could serve as a interest). compelling state Section 5 forbids a take State to action opportunities; that would worsen minorities’ electoral require it improve does not action that would them. determining In redistricting whether a decision was rea- sonably necessary, a court must bear in mind that a State is permitted great flexibility deciding comply how to § S, Georgia 5’s mandate. See 479- 539 U. Ashcroft, (2003). recognized For we have instance, that 5 does creating majority- not constrain a State’s choice between minority minority-influence or Id., districts districts. § No party here raises a constitutional 5 as in challenge applied these cases, and I application assume its is consistent with Constitution. determining emphasized that, in have And we

480-483. minority’s impaired exercise a “effective a has whether State totality should look to the franchise,” electoral court of the in- These circumstances circumstances statewide. ability minority group of “to elect a candidate of a clude the political process,” participate in the its choice” or “to by repre- leadership legislative individuals positions held of plan by support senting minority the new districts, representatives previously districts. elected from these Id., at 479-485. bearing question light many upon the

In of these factors evidentiary strong basis for believ- whether the had State necessary reasonably ing that the creation of District 25 was normally comply remand for the District 5,1 with would inquiry. id., See that “fact-intensive” Court to undertake changes Appellants however, that concede, creating ef- to District 23 an additional made “necessitated attempt elsewhere, in an to avoid Vot- fective Latino district liability.” Rights Appellant ing et al. Act Brief for Jackson precisely p. 05-276, course, in 44. This of State’s is, No. appel- position. Appellees Nor do Brief for 105-106. State charge creating more lants that in District 25 the State did §5.3 by light required these than what was In of conces- necessary, I and I would do not believe a remand is sions, judgment affirm the of the District Court. Vera, (1996), Bush in 517 U. we did not Appellants argue that S. justify in purpose incumbency protection one district

allow is not so. What we held neighboring use race district. That that, Bush clearly concluding that the Court had not erred was well, as its political incumbent-protection purposes State although the had id., opinion). We (plurality then predominated. use race See at 969 nothing I But we said more about applied scrutiny, strict as do here. Rather, rejected the part analysis. we incumbency protection as §5 interest argument compliance compelling was a be State’s Id., 983; id., gone beyond nonretrogression. mere cause the State had (Thomas, J., joined Scalia, J., concurring in judgment). notes office demonstrating that elected officials also evidence unresponsive particularized needs of the to the are policy minority group and un- of the members political use derlying subdivision’s or State’s may practice structure is tenuous of the contested or (citing Gingles, supra, probative at 44-45 have value.” (1982) (hereinafter Report); Rep. Senate 97-417 S. No. omitted). pinpoint citations number of is Another relevant consideration whether minority group an effective ma- in which the forms districts population jority roughly proportional to its share Grandy, supra, De at 1000. in the relevant area.

Case Details

Case Name: League of United Latin American Citizens v. Perry

Court Name: Supreme Court of the United States

Date Published: Jun 28, 2006

Citation: 548 U.S. 399

Docket Number: 05-204

Court Abbreviation: SCOTUS