RUCHO ET AL. v. COMMON CAUSE ET AL.
Nos. 18-422, 18-726
SUPREME COURT OF THE UNITED STATES
June 27, 2019
588 U. S. ____ (2019)
OCTOBER TERM, 2018
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
RUCHO ET AL. v. COMMON CAUSE ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
No. 18-422. Argued March 26, 2019—Decided June 27, 2019*
Voters and other plaintiffs in North Carolina and Maryland filed suits challenging their States’ congressional districting maps as unconstitutional partisan gerrymanders. The North Carolina plaintiffs claimed that the State‘s districting plan discriminated against Democrats, while the Maryland plaintiffs claimed that their State‘s plan discriminated against Republicans. The plaintiffs alleged violations of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, the Elections Clause, and Article I, §2. The District Courts in both cases ruled in favor of the plaintiffs, and the defendants appealed directly to this Court.
Held: Partisan gerrymandering claims present political questions beyond the reach of the federal courts. Pp. 6-34.
(a) In these cases, the Court is asked to decide an important question of constitutional law. Before it does so, the Court “must find that the question is presented in a ‘case’ or ‘controversy’ that is ... of a Judiciary Nature.” DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 342. While it is “the province and duty of the judicial department to say what the law is,” Marbury v. Madison, 1 Cranch 137, 177, sometimes the law is that the Judiciary cannot entertain a claim because it presents a nonjusticiable “political question,” Baker v. Carr, 369 U. S. 186, 217. Among the political question cases this Court has identified are those that lack “judicially discoverable and manageable standards for resolving [them].” Ibid. This Court‘s partisan gerrymandering cases have left unresolved the question whether such claims are claims of legal right, resolvable according to legal princi-
Partisan gerrymandering was known in the Colonies prior to Independence, and the Framers were familiar with it at the time of the drafting and ratification of the Constitution. They addressed the election of Representatives to Congress in the Elections Clause,
Courts have nonetheless been called upon to resolve a variety of questions surrounding districting. The claim of population inequality among districts in Baker v. Carr, for example, could be decided under basic equal protection principles. 369 U. S., at 226. Racial discrimination in districting also raises constitutional issues that can be addressed by the federal courts. See Gomillion v. Lightfoot, 364 U. S. 339, 339-340. Partisan gerrymandering claims have proved far more difficult to adjudicate, in part because “a jurisdiction may engage in constitutional political gerrymandering.” Hunt v. Cromartie, 526 U. S. 541, 551. To hold that legislators cannot take their partisan interests into account when drawing district lines would essentially countermand the Framers’ decision to entrust districting to political entities. The “central problem” is “determining when political gerrymandering has gone too far.” Vieth v. Jubelirer, 541 U. S. 267, 296 (plurality opinion). Despite considerable efforts in Gaffney v. Cummings, 412 U. S. 735, 753; Davis v. Bandemer, 478 U. S. 109, 116-117; Vieth, 541 U. S., at 272-273; and League of United Latin American Citizens v. Perry, 548 U. S. 399, 414 (LULAC), this Court‘s prior cases have left “unresolved whether ... claims [of legal right] may be brought in cases involving allegations of partisan gerrymandering,” Gill, 585 U. S., at ____. Two “threshold questions” remained: standing, which was addressed in Gill, and “whether [such] claims are justiciable.” Ibid. Pp. 6-14.
The fact that the Court can adjudicate one-person, one-vote claims does not mean that partisan gerrymandering claims are justiciable. This Court‘s one-person, one-vote cases recognize that each person is entitled to an equal say in the election of representatives. It hardly follows from that principle that a person is entitled to have his political party achieve representation commensurate to its share of statewide support. Vote dilution in the one-person, one-vote cases refers to the idea that each vote must carry equal weight. That requirement does not extend to political parties; it does not mean that each party must be influential in proportion to the number of its supporters. The racial gerrymandering cases are also inapposite: They call for the elimination of a racial classification, but a partisan gerrymandering claim cannot ask for the elimination of partisanship. Pp. 15-21.
(c) None of the proposed “tests” for evaluating partisan gerrymandering claims meets the need for a limited and precise standard that is judicially discernible and manageable. Pp. 22-30.
(1) The Common Cause District Court concluded that all but one of the districts in North Carolina‘s 2016 Plan violated the Equal Protection Clause by intentionally diluting the voting strength of Demo-
(2) The District Courts also found partisan gerrymandering claims justiciable under the First Amendment, coalescing around a basic three-part test: proof of intent to burden individuals based on their voting history or party affiliation, an actual burden on political speech or associational rights, and a causal link between the invidious intent and actual burden. But their analysis offers no “clear” and “manageable” way of distinguishing permissible from impermissible partisan motivation. Pp. 25-27.
(3) Using a State‘s own districting criteria as a baseline from which to measure how extreme a partisan gerrymander is would be indeterminate and arbitrary. Doing so would still leave open the question of how much political motivation and effect is too much. Pp. 27-29.
(4) The North Carolina District Court further held that the 2016 Plan violated Article I, §2, and the Elections Clause,
(d) The conclusion that partisan gerrymandering claims are not justiciable neither condones excessive partisan gerrymandering nor condemns complaints about districting to echo into a void. Numerous States are actively addressing the issue through state constitutional amendments and legislation placing power to draw electoral districts in the hands of independent commissions, mandating particular districting criteria for their mapmakers, or prohibiting drawing district lines for partisan advantage. The Framers also gave Congress the power to do something about partisan gerrymandering in the Elections Clause. That avenue for reform established by the Framers, and used by Congress in the past, remains open. Pp. 30–34.
318 F. Supp. 3d 777 and 348 F. Supp. 3d 493, vacated and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which THOMAS, ALITO, GORSUCH, and KAVANAUGH, JJ., joined. KAGAN, J., filed a dissenting opinion, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
Nos. 18-422, 18-726
18-422 ROBERT A. RUCHO, ET AL., APPELLANTS v. COMMON CAUSE, ET AL.; AND ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
18-726 LINDA H. LAMONE, ET AL., APPELLANTS v. O. JOHN BENISEK, ET AL. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
[June 27, 2019]
CHIEF JUSTICE ROBERTS delivered the opinion of the Court.
Voters and other plaintiffs in North Carolina and Maryland challenged their States’ congressional districting maps as unconstitutional partisan gerrymanders. The North Carolina plaintiffs complained that the State‘s districting plan discriminated against Democrats; the Maryland plaintiffs complained that their State‘s plan discriminated against Republicans. The plaintiffs alleged that the gerrymandering violated the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, the Elections Clause, and Article I, §2, of the Constitution. The District Courts in both cases ruled in favor
These cases require us to consider once again whether claims of excessive partisanship in districting are “justiciable“—that is, properly suited for resolution by the federal courts. This Court has not previously struck down a districting plan as an unconstitutional partisan gerrymander, and has struggled without success over the past several decades to discern judicially manageable standards for deciding such claims. The districting plans at issue here are highly partisan, by any measure. The question is whether the courts below appropriately exercised judicial power when they found them unconstitutional as well.
I
A
The first case involves a challenge to the congressional redistricting plan enacted by the Republican-controlled North Carolina General Assembly in 2016. Rucho v. Common Cause, No. 18–422. The Republican legislators leading the redistricting effort instructed their mapmaker to use political data to draw a map that would produce a congressional delegation of ten Republicans and three Democrats. 318 F. Supp. 3d 777, 807–808 (MDNC 2018). As one of the two Republicans chairing the redistricting committee stated, “I think electing Republicans is better than electing Democrats. So I drew this map to help foster what I think is better for the country.” Id., at 809. He further explained that the map was drawn with the aim of electing ten Republicans and three Democrats because he did “not believe it [would be] possible to draw a map with 11 Republicans and 2 Democrats.” Id., at 808. One Democratic state senator objected that entrenching the 10–3 advantage for Republicans was not “fair, reasonable, [or] balanced” because, as recently as 2012, “Democratic con-
In November 2016, North Carolina conducted congressional elections using the 2016 Plan, and Republican candidates won 10 of the 13 congressional districts. Id., at 810. In the 2018 elections, Republican candidates won nine congressional districts, while Democratic candidates won three. The Republican candidate narrowly prevailed in the remaining district, but the State Board of Elections called a new election after allegations of fraud.
This litigation began in August 2016, when the North Carolina Democratic Party, Common Cause (a nonprofit organization), and 14 individual North Carolina voters sued the two lawmakers who had led the redistricting effort and other state defendants in Federal District Court. Shortly thereafter, the League of Women Voters of North Carolina and a dozen additional North Carolina voters filed a similar complaint. The two cases were consolidated.
The plaintiffs challenged the 2016 Plan on multiple constitutional grounds. First, they alleged that the Plan violated the Equal Protection Clause of the Fourteenth Amendment by intentionally diluting the electoral strength of Democratic voters. Second, they claimed that the Plan violated their First Amendment rights by retaliating against supporters of Democratic candidates on the basis of their political beliefs. Third, they asserted that the Plan usurped the right of “the People” to elect their preferred candidates for Congress, in violation of the requirement in
After a four-day trial, the three-judge District Court unanimously concluded that the 2016 Plan violated the Equal Protection Clause and Article I of the Constitution. The court further held, with Judge Osteen dissenting, that the Plan violated the First Amendment. Common Cause v. Rucho, 279 F. Supp. 3d 587 (MDNC 2018). The defendants appealed directly to this Court under
While that appeal was pending, we decided Gill v. Whitford, 585 U. S. ____ (2018), a partisan gerrymandering case out of Wisconsin. In that case, we held that a plaintiff asserting a partisan gerrymandering claim based on a theory of vote dilution must establish standing by showing he lives in an allegedly “cracked” or “packed” district. Id., at ____ (slip op., at 17). A “cracked” district is one in which a party‘s supporters are divided among multiple districts, so that they fall short of a majority in each; a “packed” district is one in which a party‘s supporters are highly concentrated, so they win that district by a large margin, “wasting” many votes that would improve their chances in others. Id., at ____ (slip op., at 3-4).
After deciding Gill, we remanded the present case for further consideration by the District Court. 585 U. S. ____ (2018). On remand, the District Court again struck down the 2016 Plan. 318 F. Supp. 3d 777. It found standing and concluded that the case was appropriate for judicial resolution. On the merits, the court found that “the General Assembly‘s predominant intent was to discriminate against voters who supported or were likely to support non-Republican candidates,” and to “entrench Republican candidates” through widespread cracking and packing of Democratic voters. Id., at 883-884. The court rejected the defendants’ arguments that the distribution of Republican and Democratic voters throughout North Carolina and the
The court also agreed with the plaintiffs that the 2016 Plan discriminated against them because of their political speech and association, in violation of the First Amendment. Id., at 935. Judge Osteen dissented with respect to that ruling. Id., at 954–955. Finally, the District Court concluded that the 2016 Plan violated the Elections Clause and Article I, §2. Id., at 935-941. The District Court enjoined the State from using the 2016 Plan in any election after the November 2018 general election. Id., at 942.
The defendants again appealed to this Court, and we postponed jurisdiction. 586 U. S. ____ (2019).
B
The second case before us is Lamone v. Benisek, No. 18–726. In 2011, the Maryland Legislature—dominated by Democrats—undertook to redraw the lines of that State‘s eight congressional districts. The Governor at the time, Democrat Martin O‘Malley, led the process. He appointed a redistricting committee to help redraw the map, and asked Congressman Steny Hoyer, who has described himself as a “serial gerrymanderer,” to advise the committee. 348 F. Supp. 3d 493, 502 (Md. 2018). The Governor later testified that his aim was to “use the redistricting process to change the overall composition of Maryland‘s congressional delegation to 7 Democrats and 1 Republican by flipping” one district. Ibid. “[A] decision was made to go for the Sixth,” ibid., which had been held by a Republican for nearly two decades. To achieve the required equal population among districts, only about 10,000 residents needed to be removed from that district. Id., at 498. The 2011 Plan accomplished that by moving roughly 360,000
In November 2013, three Maryland voters filed this lawsuit. They alleged that the 2011 Plan violated the First Amendment, the Elections Clause, and Article I, §2, of the Constitution. After considerable procedural skirmishing and litigation over preliminary relief, the District Court entered summary judgment for the plaintiffs. 348 F. Supp. 3d 493. It concluded that the plaintiffs’ claims were justiciable, and that the Plan violated the First Amendment by diminishing their “ability to elect their candidate of choice” because of their party affiliation and voting history, and by burdening their associational rights. Id., at 498. On the latter point, the court relied upon findings that Republicans in the Sixth District “were burdened in fundraising, attracting volunteers, campaigning, and generating interest in voting in an atmosphere of general confusion and apathy.” Id., at 524.
The District Court permanently enjoined the State from using the 2011 Plan and ordered it to promptly adopt a new plan for the 2020 election. Id., at 525. The defendants appealed directly to this Court under
II
A
Chief Justice Marshall famously wrote that it is “the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). Sometimes, however, “the law is that the judicial department has no business entertaining the claim of unlawfulness—because the question is entrusted to one of the political branches or involves no judicially enforceable rights.” Vieth v. Jubelirer, 541 U. S. 267, 277 (2004) (plurality opinion). In such a case the claim is said to present a “political question” and to be nonjusticiable—outside the courts’ competence and therefore beyond the courts’ jurisdiction. Baker v. Carr, 369 U. S. 186, 217 (1962). Among the political question cases the Court has identified are those that lack “judicially discoverable and manageable standards for resolving [them].” Ibid.
Last Term in Gill v. Whitford, we reviewed our partisan gerrymandering cases and concluded that those cases “leave unresolved whether such claims may be brought.” 585 U. S., at ____ (slip op., at 13). This Court‘s authority to act, as we said in Gill, is “grounded in and limited by the necessity of resolving, according to legal principles, a plaintiff‘s particular claim of legal right.” Ibid. The question here is whether there is an “appropriate role for the Federal Judiciary” in remedying the problem of partisan gerrymandering—whether such claims are claims of legal right, resolvable according to legal principles, or political questions that must find their resolution elsewhere. Id., at ____ (slip op., at 8).
Partisan gerrymandering is nothing new. Nor is frustration with it. The practice was known in the Colonies prior to Independence, and the Framers were familiar with it at the time of the drafting and ratification of the Constitution. See Vieth, 541 U. S., at 274 (plurality opinion). During the very first congressional elections, George Washington and his Federalist allies accused Patrick Henry of trying to gerrymander Virginia‘s districts against their candidates—in particular James Madison, who ultimately prevailed over fellow future President James Monroe. Hunter, The First Gerrymander? 9 Early Am. Studies 792–794, 811 (2011). See 5 Writings of Thomas Jefferson 71 (P. Ford ed. 1895) (Letter to W. Short (Feb. 9, 1789)) (“Henry has so modelled the districts for representatives as to tack Orange [county] to counties where he himself has great influence that Madison may not be elected into the lower federal house“).
In 1812, Governor of Massachusetts and future Vice President Elbridge Gerry notoriously approved congressional districts that the legislature had drawn to aid the Democratic-Republican Party. The moniker “gerrymander” was born when an outraged Federalist newspaper observed that one of the misshapen districts resembled a salamander. See Vieth, 541 U. S., at 274 (plurality opinion); E. Griffith, The Rise and Development of the Gerrymander 17-19 (1907). “By 1840, the gerrymander was a recognized force in party politics and was generally attempted in all legislation enacted for the formation of election districts. It was generally conceded that each party would attempt to gain power which was not proportionate to its numerical strength.” Id., at 123.
The Framers addressed the election of Representatives to Congress in the Elections Clause.
“[T]he State Legislatures will sometimes fail or refuse to consult the common interest at the expense of their local coveniency or prejudices. . . . Whenever the State Legislatures had a favorite measure to carry, they would take care so to mould their regulations as to favor the candidates they wished to succeed.” 2 Records of the Federal Convention of 1787, at 240-241.
During the subsequent fight for ratification, the provision remained a subject of debate. Antifederalists predicted that Congress‘s power under the Elections Clause would allow Congress to make itself “omnipotent,” setting the “time” of elections as never or the “place” in difficult to reach corners of the State. Federalists responded that, among other justifications, the revisionary power was necessary to counter state legislatures set on undermining fair representation, including through malapportionment. M. Klarman, The Framers’ Coup: The Making of the United States Constitution 340-342 (2016). The Federalists were, for example, concerned that newly developing population centers would be deprived of their proper electoral weight, as some cities had been in Great Britain. See 6 The Documentary History of the Ratification of the Constitution: Massachusetts 1278–1279 (J. Kaminski & G. Saladino eds. 2000).
Congress has regularly exercised its Elections Clause power, including to address partisan gerrymandering. The Apportionment Act of 1842, which required single-
Appellants suggest that, through the Elections Clause, the Framers set aside electoral issues such as the one before us as questions that only Congress can resolve. See Baker, 369 U. S., at 217. We do not agree. In two areas—one-person, one-vote and racial gerrymandering—our cases have held that there is a role for the courts with respect to at least some issues that could arise from a State‘s drawing of congressional districts. See Wesberry v. Sanders, 376 U. S. 1 (1964); Shaw v. Reno, 509 U. S. 630 (1993) (Shaw I).
But the history is not irrelevant. The Framers were aware of electoral districting problems and considered what to do about them. They settled on a characteristic approach, assigning the issue to the state legislatures, expressly checked and balanced by the Federal Congress. As Alexander Hamilton explained, “it will . . . not be denied that a discretionary power over elections ought to exist somewhere. It will, I presume, be as readily conceded that there were only three ways in which this power could
C
Courts have nevertheless been called upon to resolve a variety of questions surrounding districting. Early on, doubts were raised about the competence of the federal courts to resolve those questions. See Wood v. Broom, 287 U. S. 1 (1932); Colegrove v. Green, 328 U. S. 549 (1946).
In the leading case of Baker v. Carr, voters in Tennessee complained that the State‘s districting plan for state representatives “debase[d]” their votes, because the plan was predicated on a 60-year-old census that no longer reflected the distribution of population in the State. The plaintiffs argued that votes of people in overpopulated districts held less value than those of people in less-populated districts, and that this inequality violated the Equal Protection Clause of the Fourteenth Amendment. The District Court dismissed the action on the ground that the claim was not justiciable, relying on this Court‘s precedents, including Colegrove. Baker v. Carr, 179 F. Supp. 824, 825, 826 (MD Tenn. 1959). This Court reversed. It identified various considerations relevant to determining whether a claim is a nonjusticiable political question, including whether there is “a lack of judicially discoverable and manageable standards for resolving it.” 369 U. S., at 217. The Court concluded that the claim of population inequality among districts did not fall into that category, because such a claim could be decided under basic equal protection principles. Id., at 226. In Wesberry v. Sanders,
Another line of challenges to districting plans has focused on race. Laws that explicitly discriminate on the basis of race, as well as those that are race neutral on their face but are unexplainable on grounds other than race, are of course presumptively invalid. The Court applied those principles to electoral boundaries in Gomillion v. Lightfoot, 364 U.S. 339, 340 (1960). In Wright v. Rockefeller, 376 U. S. 52 (1964), the Court extended the reasoning of Gomillion to congressional districting. See Shaw I, 509 U. S., at 645.
Partisan gerrymandering claims have proved far more difficult to adjudicate. The basic reason is that, while it is illegal for a jurisdiction to depart from the one-person, one-vote rule, or to engage in racial discrimination in districting, “a jurisdiction may engage in constitutional political gerrymandering.” Hunt v. Cromartie, 526 U. S. 541, 551 (1999) (citing Bush v. Vera, 517 U. S. 952, 968 (1996); Shaw v. Hunt, 517 U. S. 899, 905 (1996) (Shaw II); Miller v. Johnson, 515 U. S. 900, 916 (1995); Shaw I, 509 U. S., at 646). See also Gaffney v. Cummings, 412 U. S. 735, 753 (1973) (recognizing that “[p]olitics and political considerations are inseparable from districting and apportionment“).
To hold that legislators cannot take partisan interests into account when drawing district lines would essentially countermand the Framers’ decision to entrust districting to political entities. The “central problem” is not determining whether a jurisdiction has engaged in partisan gerrymandering. It is “determining when political gerry-
We first considered a partisan gerrymandering claim in Gaffney v. Cummings in 1973. There we rejected an equal protection challenge to Connecticut‘s redistricting plan, which “aimed at a rough scheme of proportional representation of the two major political parties” by “wiggl[ing] and joggl[ing] boundary lines” to create the appropriate number of safe seats for each party. 412 U. S., at 738, 752, n. 18 (internal quotation marks omitted). In upholding the State‘s plan, we reasoned that districting “inevitably has and is intended to have substantial political consequences.” Id., at 753.
Thirteen years later, in Davis v. Bandemer, we addressed a claim that Indiana Republicans had cracked and packed Democrats in violation of the Equal Protection Clause. 478 U. S. 109, 116–117 (1986) (plurality opinion). A majority of the Court agreed that the case was justiciable, but the Court splintered over the proper standard to apply. Four Justices would have required proof of “intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.” Id., at 127. Two Justices would have focused on “whether the boundaries of the voting districts have been distorted deliberately and arbitrarily to achieve illegitimate ends.” Id., at 165 (Powell, J., concurring in part and dissenting in part). Three Justices, meanwhile, would have held that the Equal Protection Clause simply “does not supply judicially manageable standards for resolving purely political gerrymandering claims.” Id., at 147 (O‘Connor, J., concurring in judgment). At the end of the day, there was “no ‘Court’ for a standard that properly should be applied in determining whether a challenged redistricting
Eighteen years later, in Vieth, the plaintiffs complained that Pennsylvania‘s legislature “ignored all traditional redistricting criteria, including the preservation of local government boundaries,” in order to benefit Republican congressional candidates. 541 U. S., at 272–273 (plurality opinion) (brackets omitted). Justice Scalia wrote for a four-Justice plurality. He would have held that the plaintiffs’ claims were nonjusticiable because there was no “judicially discernible and manageable standard” for deciding them. Id., at 306. Justice Kennedy, concurring in the judgment, noted “the lack of comprehensive and neutral principles for drawing electoral boundaries [and] the absence of rules to limit and confine judicial intervention.” Id., at 306-307. He nonetheless left open the possibility that “in another case a standard might emerge.” Id., at 312. Four Justices dissented.
In LULAC, the plaintiffs challenged a mid-decade redistricting map approved by the Texas Legislature. Once again a majority of the Court could not find a justiciable standard for resolving the plaintiffs’ partisan gerrymandering claims. See 548 U. S., at 414 (noting that the “disagreement over what substantive standard to apply” that was evident in Bandemer “persists“).
As we summed up last Term in Gill, our “considerable efforts in Gaffney, Bandemer, Vieth, and LULAC leave unresolved whether claims [of legal right] may be brought in cases involving allegations of partisan gerrymandering.” 585 U. S., at ____ (slip op., at 13). Two “threshold questions” remained: standing, which we addressed in Gill, and “whether [such] claims are justiciable.” Ibid.
A
In considering whether partisan gerrymandering claims are justiciable, we are mindful of Justice Kennedy‘s counsel in Vieth: Any standard for resolving such claims must be grounded in a “limited and precise rationale” and be “clear, manageable, and politically neutral.” 541 U. S., at 306-308 (opinion concurring in judgment). An important reason for those careful constraints is that, as a Justice with extensive experience in state and local politics put it, “[t]he opportunity to control the drawing of electoral boundaries through the legislative process of apportionment is a critical and traditional part of politics in the United States.” Bandemer, 478 U. S., at 145 (opinion of O‘Connor, J.). See Gaffney, 412 U. S., at 749 (observing that districting implicates “fundamental ‘choices about the nature of representation‘” (quoting Burns v. Richardson, 384 U. S. 73, 92 (1966))). An expansive standard requiring “the correction of all election district lines drawn for partisan reasons would commit federal and state courts to unprecedented intervention in the American political process,” Vieth, 541 U. S., at 306 (opinion of Kennedy, J.).
As noted, the question is one of degree: How to “provid[e] a standard for deciding how much partisan dominance is too much.” LULAC, 548 U. S., at 420 (opinion of Kennedy, J.). And it is vital in such circumstances that the Court act only in accord with especially clear standards: “With uncertain limits, intervening courts—even when proceeding with best intentions—would risk assuming political, not legal, responsibility for a process that often produces ill will and distrust.” Vieth, 541 U. S., at 307 (opinion of Kennedy, J.). If federal courts are to “inject [themselves] into the most heated partisan issues” by adjudicating partisan gerrymandering claims, Bandemer, 478 U. S., at 145 (opinion of O‘Connor, J.), they must be armed with a standard that can reliably differen-
B
Partisan gerrymandering claims rest on an instinct that groups with a certain level of political support should enjoy a commensurate level of political power and influence. Explicitly or implicitly, a districting map is alleged to be unconstitutional because it makes it too difficult for one party to translate statewide support into seats in the legislature. But such a claim is based on a “norm that does not exist” in our electoral system “statewide elections for representatives along party lines.” Bandemer, 478 U. S., at 159 (opinion of O‘Connor, J.).
Partisan gerrymandering claims invariably sound in a desire for proportional representation. As Justice O‘Connor put it, such claims are based on “a conviction that the greater the departure from proportionality, the more suspect an apportionment plan becomes.” Ibid. “Our cases, however, clearly foreclose any claim that the Constitution requires proportional representation or that legislatures in reapportioning must draw district lines to come as near as possible to allocating seats to the contending parties in proportion to what their anticipated statewide vote will be.” Id., at 130 (plurality opinion). See Mobile v. Bolden, 446 U. S. 55, 75-76 (1980) (plurality opinion) (“The Equal Protection Clause of the
The Founders certainly did not think proportional representation was required. For more than 50 years after ratification of the
Unable to claim that the
“‘Fairness’ does not seem to us a judicially manageable standard. . . . Some criterion more solid and more demonstrably met than that seems to us necessary to enable the state legislatures to discern the limits of their districting discretion, to meaningfully constrain the discretion of the courts, and to win public acceptance for the courts’ intrusion into a process that is the very foundation of democratic decisionmaking.” 541 U. S., at 291.
The initial difficulty in settling on a “clear, manageable and politically neutral” test for fairness is that it is not even clear what fairness looks like in this context. There is a large measure of “unfairness” in any winner-take-all system. Fairness may mean a greater number of competitive districts. Such a claim seeks to undo packing and
On the other hand, perhaps the ultimate objective of a “fairer” share of seats in the congressional delegation is most readily achieved by yielding to the gravitational pull of proportionality and engaging in cracking and packing, to ensure each party its “appropriate” share of “safe” seats. See id., at 130-131 (“To draw district lines to maximize the representation of each major party would require creating as many safe seats for each party as the demographic and predicted political characteristics of the State would permit.“); Gaffney, 412 U. S., at 735-738. Such an approach, however, comes at the expense of competitive districts and of individuals in districts allocated to the opposing party.
Or perhaps fairness should be measured by adherence to “traditional” districting criteria, such as maintaining political subdivisions, keeping communities of interest together, and protecting incumbents. See Brief for Bipartisan Group of Current and Former Members of the House of Representatives as Amici Curiae; Brief for Professor Wesley Pegden et al. as Amici Curiae in No. 18-422. But protecting incumbents, for example, enshrines a particular partisan distribution. And the “natural political geography” of a State—such as the fact that urban electoral districts are often dominated by one political party—can itself lead to inherently packed districts. As Justice Kennedy has explained, traditional criteria such as compactness and contiguity “cannot promise political neutrality
Deciding among just these different visions of fairness (you can imagine many others) poses basic questions that are political, not legal. There are no legal standards discernible in the
And it is only after determining how to define fairness that you can even begin to answer the determinative question: “How much is too much?” At what point does permissible partisanship become unconstitutional? If compliance with traditional districting criteria is the fairness touchstone, for example, how much deviation from those criteria is constitutionally acceptable and how should mapdrawers prioritize competing criteria? Should a court “reverse gerrymander” other parts of a State to counteract “natural” gerrymandering caused, for example, by the urban concentration of one party? If a districting plan protected half of the incumbents but redistricted the rest into head-to-head races, would that be constitutional? A court would have to rank the relative importance of those traditional criteria and weigh how much deviation from each to allow.
If a court instead focused on the respective number of seats in the legislature, it would have to decide the ideal
Appellees contend that if we can adjudicate one-person, one-vote claims, we can also assess partisan gerrymandering claims. But the one-person, one-vote rule is relatively easy to administer as a matter of math. The same cannot be said of partisan gerrymandering claims, because the
More fundamentally, “vote dilution” in the one-person, one-vote cases refers to the idea that each vote must carry equal weight. In other words, each representative must be accountable to (approximately) the same number of constituents. That requirement does not extend to political parties. It does not mean that each party must be influen-
Nor do our racial gerrymandering cases provide an appropriate standard for assessing partisan gerrymandering. “[N]othing in our case law compels the conclusion that racial and political gerrymanders are subject to precisely the same constitutional scrutiny. In fact, our country‘s long and persistent history of racial discrimination in voting—as well as our
Appellees and the dissent propose a number of “tests” for evaluating partisan gerrymandering claims, but none meets the need for a limited and precise standard that is judicially discernible and manageable. And none provides a solid grounding for judges to take the extraordinary step of reallocating power and influence between political parties.
A
The Common Cause District Court concluded that all but one of the districts in North Carolina‘s 2016 Plan violated the Equal Protection Clause by intentionally diluting the voting strength of Democrats. 318 F. Supp. 3d, at 923. In reaching that result the court first required the plaintiffs to prove “that a legislative mapdrawer‘s predominant purpose in drawing the lines of a particular district was to ‘subordinate adherents of one political party and entrench a rival party in power.‘” Id., at 865 (quoting Arizona State Legislature v. Arizona Independent Redistricting Comm‘n, 576 U. S. ___, ___ (2015) (slip op., at 1)). The District Court next required a showing “that the dilution of the votes of supporters of a disfavored party in a particular district—by virtue of cracking or packing—is likely to persist in subsequent elections such that an elected representative from the favored party in the district will not feel a need to be responsive to constituents who support the disfavored party.” 318 F. Supp. 3d, at 867. Finally, after a prima facie showing of partisan vote dilution, the District Court shifted the burden to the defendants to prove that the discriminatory effects are “attributable to a legitimate state interest or other neutral explanation.” Id., at 868.
The District Court‘s “predominant intent” prong is borrowed from the racial gerrymandering context. In racial gerrymandering cases, we rely on a “predominant
The District Court tried to limit the reach of its test by requiring plaintiffs to show, in addition to predominant partisan intent, that vote dilution “is likely to persist” to such a degree that the elected representative will feel free to ignore the concerns of the supporters of the minority party. 318 F. Supp. 3d, at 867. But “[t]o allow district courts to strike down apportionment plans on the basis of their prognostications as to the outcome of future elections . . . invites ‘findings’ on matters as to which neither judges nor anyone else can have any confidence.” Bandemer, 478 U. S., at 160 (opinion of O‘Connor, J.). See LULAC, 548 U. S., at 420 (opinion of Kennedy, J.) (“[W]e are wary of adopting a constitutional standard that invalidates a map based on unfair results that would occur in a hypothetical state of affairs.“). And the test adopted by the Common Cause court requires a far more nuanced prediction than simply who would prevail in future political contests. Judges must forecast with unspecified certainty whether a prospective winner will have a margin of victory sufficient to permit him to ignore the supporters of his defeated opponent (whoever that may turn out to be). Judges not only have to pick the winner—they have to beat the point spread.
The appellees assure us that “the persistence of a
Even the most sophisticated districting maps cannot reliably account for some of the reasons voters prefer one candidate over another, or why their preferences may change. Voters elect individual candidates in individual districts, and their selections depend on the issues that matter to them, the quality of the candidates, the tone of the candidates’ campaigns, the performance of an incumbent, national events or local issues that drive voter turnout, and other considerations. Many voters split their tickets. Others never register with a political party, and vote for candidates from both major parties at different
It is hard to see what the District Court‘s third prong—providing the defendant an opportunity to show that the discriminatory effects were due to a “legitimate redistricting objective“—adds to the inquiry. 318 F. Supp. 3d, at 861. The first prong already requires the plaintiff to prove that partisan advantage predominates. Asking whether a legitimate purpose other than partisanship was the motivation for a particular districting map just restates the question.
B
The District Courts also found partisan gerrymandering claims justiciable under the
To begin, there are no restrictions on speech, association, or any other
The plaintiffs’ argument is that partisanship in districting should be regarded as simple discrimination against supporters of the opposing party on the basis of political viewpoint. Under that theory, any level of partisanship in districting would constitute an infringement of their
As for actual burden, the slight anecdotal evidence found sufficient by the District Courts in these cases shows that this too is not a serious standard for separating constitutional from unconstitutional partisan gerrymandering. The District Courts relied on testimony about difficulty drumming up volunteers and enthusiasm. How much of a decline in voter engagement is enough to constitute a
These cases involve blatant examples of partisanship driving districting decisions. But the
C
The dissent proposes using a State‘s own districting criteria as a neutral baseline from which to measure how extreme a partisan gerrymander is. The dissent would have us line up all the possible maps drawn using those criteria according to the partisan distribution they would produce. Distance from the “median” map would indicate whether a particular districting plan harms supporters of one party to an unconstitutional extent. Post, at 18-19, 25 (opinion of KAGAN, J.).
As an initial matter, it does not make sense to use criteria that will vary from State to State and year to year as the baseline for determining whether a gerrymander violates the Federal
Even if we were to accept the dissent‘s proposed baseline, it would return us to “the original unanswerable question (How much political motivation and effect is too much?).” Vieth, 541 U. S., at 296-297 (plurality opinion). Would twenty percent away from the median map be okay? Forty percent? Sixty percent? Why or why not? (We appreciate that the dissent finds all the unanswerable questions annoying, see post, at 22, but it seems a useful way to make the point.) The dissent‘s answer says it all: “This much is too much.” Post, at 25-26. That is not even trying to articulate a standard or rule.
The dissent argues that there are other instances in law where matters of degree are left to the courts. See post, at 27. True enough. But those instances typically involve constitutional or statutory provisions or common law confining and guiding the exercise of judicial discretion. For example, the dissent cites the need to determine “substantial anticompetitive effect[s]” in antitrust law. Post, at 27 (citing Ohio v. American Express Co., 585 U. S. ___ (2018)). That language, however, grew out of the
D
The North Carolina District Court further concluded that the 2016 Plan violated the Elections Clause and
The District Court concluded that the 2016 Plan exceeded the North Carolina General Assembly‘s Elections Clause authority because, among other reasons, “the Elections Clause did not empower State legislatures to disfavor the interests of supporters of a particular candidate or party in drawing congressional districts.” 318 F. Supp. 3d, at 937. The court further held that partisan gerrymandering infringes the right of “the People” to select their representatives. Id., at 938-940. Before the District Court‘s decision, no court had reached a similar conclusion. In fact, the plurality in Vieth concluded—without objection from any other Justice—that neither § 2 nor § 4 of Article I “provides a judicially enforceable limit on the political considerations that the States and Congress may take into
The District Court nevertheless asserted that partisan gerrymanders violate “the core principle of [our] republican government” preserved in
V
Excessive partisanship in districting leads to results that reasonably seem unjust. But the fact that such gerrymandering is “incompatible with democratic principles,” Arizona State Legislature, 576 U. S., at ___ (slip op., at 1), does not mean that the solution lies with the federal judiciary. We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts. Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the
Today the dissent essentially embraces the argument that the Court unanimously rejected in Gill: “this Court
What the appellees and dissent seek is an unprecedented expansion of judicial power. We have never struck down a partisan gerrymander as unconstitutional—despite various requests over the past 45 years. The expansion of judicial authority would not be into just any area of controversy, but into one of the most intensely partisan aspects of American political life. That intervention would be unlimited in scope and duration—it would recur over and over again around the country with each new round of districting, for state as well as federal representatives. Consideration of the impact of today‘s ruling on democratic principles cannot ignore the effect of the unelected and politically unaccountable branch of the Federal Government assuming such an extraordinary and unprecedented role. See post, at 32-33.
Our conclusion does not condone excessive partisan gerrymandering. Nor does our conclusion condemn complaints about districting to echo into a void. The States, for example, are actively addressing the issue on a number of fronts. In 2015, the Supreme Court of Florida struck down that State‘s congressional districting plan as a violation of the Fair Districts Amendment to the Florida
Other States have mandated at least some of the traditional districting criteria for their mapmakers. Some have outright prohibited partisan favoritism in redistricting. See
As noted, the Framers gave Congress the power to do something about partisan gerrymandering in the Elections
Dozens of other bills have been introduced to limit reliance on political considerations in redistricting. In 2010, H. R. 6250 would have required States to follow standards of compactness, contiguity, and respect for political subdivisions in redistricting. It also would have prohibited the establishment of congressional districts “with the major purpose of diluting the voting strength of any person, or group, including any political party,” except when necessary to comply with the
Another example is the Fairness and Independence in Redistricting Act, which was introduced in 2005 and has been reintroduced in every Congress since. That bill would require every State to establish an independent commission to adopt redistricting plans. The bill also set forth criteria for the independent commissions to use, such as compactness, contiguity, and population equality. It would prohibit consideration of voting history, political party affiliation, or incumbent Representative‘s residence. H. R. 2642, 109th Cong., 1st Sess., § 4 (referred to subcommittee).
We express no view on any of these pending proposals. We simply note that the avenue for reform established by the Framers, and used by Congress in the past, remains open.
*
No one can accuse this Court of having a crabbed view of
The judgments of the United States District Court for the Middle District of North Carolina and the United States District Court for the District of Maryland are vacated, and the cases are remanded with instructions to dismiss for lack of jurisdiction.
It is so ordered.
Nos. 18-422, 18-726
ROBERT A. RUCHO, ET AL., APPELLANTS v. COMMON CAUSE, ET AL.; AND
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
LINDA H. LAMONE, ET AL., APPELLANTS v. O. JOHN BENISEK, ET AL.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
[June 27, 2019]
JUSTICE KAGAN, with whom JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE SOTOMAYOR join, dissenting.
For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.
And not just any constitutional violation. The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people. These gerrymanders enabled politicians to entrench themselves in office as against voters’ preferences. They promoted parti-
And checking them is not beyond the courts. The majority‘s abdication comes just when courts across the country, including those below, have coalesced around manageable judicial standards to resolve partisan gerrymandering claims. Those standards satisfy the majority‘s own benchmarks. They do not require—indeed, they do not permit—courts to rely on their own ideas of electoral fairness, whether proportional representation or any other. And they limit courts to correcting only egregious gerrymanders, so judges do not become omnipresent players in the political process. But yes, the standards used here do allow—as well they should—judicial intervention in the worst-of-the-worst cases of democratic subversion, causing blatant constitutional harms. In other words, they allow courts to undo partisan gerrymanders of the kind we face today from North Carolina and Maryland. In giving such gerrymanders a pass from judicial review, the majority goes tragically wrong.
I
Maybe the majority errs in these cases because it pays so little attention to the constitutional harms at their core. After dutifully reciting each case‘s facts, the majority leaves them forever behind, instead immersing itself in everything that could conceivably go amiss if courts became involved. So it is necessary to fill in the gaps. To recount exactly what politicians in North Carolina and Maryland did to entrench their parties in political office, whatever the electorate might think. And to elaborate on the constitutional injury those politicians wreaked, to our democratic system and to individuals’ rights. All that will help in considering whether courts confronting partisan
A
The plaintiffs here challenge two congressional districting plans—one adopted by Republicans in North Carolina and the other by Democrats in Maryland—as unconstitutional partisan gerrymanders. As I relate what happened in those two States, ask yourself: Is this how American democracy is supposed to work?
Start with North Carolina. After the 2010 census, the North Carolina General Assembly, with Republican majorities in both its House and its Senate, enacted a new congressional districting plan. That plan governed the two next national elections. In 2012, Republican candidates won 9 of the State‘s 13 seats in the U. S. House of Representatives, although they received only 49% of the statewide vote. In 2014, Republican candidates increased their total to 10 of the 13 seats, this time based on 55% of the vote. Soon afterward, a District Court struck down two districts in the plan as unconstitutional racial gerrymanders. See Harris v. McCrory, 159 F. Supp. 3d 600 (MDNC 2016), aff‘d sub nom. Cooper v. Harris, 581 U. S. ___ (2017). The General Assembly, with both chambers still controlled by Republicans, went back to the drawing board to craft the needed remedial state map. And here is how the process unfolded:
- The Republican co-chairs of the Assembly‘s redistricting committee, Rep. David Lewis and Sen. Robert Rucho, instructed Dr. Thomas Hofeller, a Republican districting specialist, to create a new map that would maintain the 10-3 composition of the State‘s congressional delegation come what might. Using sophisticated technological tools and
precinct-level election results selected to predict voting behavior, Hofeller drew district lines to minimize Democrats’ voting strength and ensure the election of 10 Republican Congressmen. See Common Cause v. Rucho, 318 F. Supp. 3d 777, 805–806 (MDNC 2018). - Lewis then presented for the redistricting committee‘s (retroactive) approval a list of the criteria Hofeller had employed—including one labeled “Partisan Advantage.” That criterion, endorsed by a party-line vote, stated that the committee would make all “reasonable efforts to construct districts” to “maintain the current [10-3] partisan makeup” of the State‘s congressional delegation. Id., at 807.
- Lewis explained the Partisan Advantage criterion to legislators as follows: We are “draw[ing] the maps to give a partisan advantage to 10 Republicans and 3 Democrats because [I] d[o] not believe it[‘s] possible to draw a map with 11 Republicans and 2 Democrats.” Id., at 808 (internal quotation marks omitted).
- The committee and the General Assembly later enacted, again on a party-line vote, the map Hofeller had drawn. See id., at 809.
- Lewis announced: “I think electing Republicans is better than electing Democrats. So I drew this map to help foster what I think is better for the country.” Ibid. (internal quotation marks omitted).
You might think that judgment best left to the American people. But give Lewis credit for this much: The map has worked just as he planned and predicted. In 2016, Repub-
Events in Maryland make for a similarly grisly tale. For 50 years, Maryland‘s 8-person congressional delegation typically consisted of 2 or 3 Republicans and 5 or 6 Democrats. After the 2000 districting, for example, the First and Sixth Districts reliably elected Republicans, and the other districts as reliably elected Democrats. See R. Cohen & J. Barnes, Almanac of American Politics 2016, p. 836 (2015). But in the 2010 districting cycle, the State‘s Democratic leaders, who controlled the governorship and both houses of the General Assembly, decided to press their advantage.
- Governor Martin O‘Malley, who oversaw the process, decided (in his own later words) “to create a map that was more favorable for Democrats over the next ten years.” Because flipping the First District was geographically next-to-impossible, “a decision was made to go for the Sixth.” Benisek v. Lamone, 348 F. Supp. 3d 493, 502 (Md. 2018) (quoting O‘Malley; emphasis deleted).
- O‘Malley appointed an advisory committee as the public face of his effort, while asking Congressman Steny Hoyer, a self-described “serial gerrymanderer,” to hire and direct a mapmaker. Id., at 502. Hoyer retained Eric Hawkins, an analyst at a political consulting firm providing services to Democrats. See id., at 502-503.
- Hawkins received only two instructions: to ensure that the new map produced 7 reliable Democratic
seats, and to protect all Democratic incumbents. See id., at 503. - Using similar technologies and election data as Hofeller, Hawkins produced a map to those specifications. Although new census figures required removing only 10,000 residents from the Sixth District, Hawkins proposed a large-scale population transfer. The map moved about 360,000 voters out of the district and another 350,000 in. That swap decreased the number of registered Republicans in the district by over 66,000 and increased the number of registered Democrats by about 24,000, all to produce a safe Democratic district. See id., at 499, 501.
- After the advisory committee adopted the map on a party-line vote, State Senate President Thomas Miller briefed the General Assembly‘s Democratic caucuses about the new map‘s aims. Miller told his colleagues that the map would give “Democrats a real opportunity to pick up a seventh seat in the delegation” and that “[i]n the face of Republican gains in redistricting in other states[,] we have a serious obligation to create this opportunity.” id., at 506 (internal quotation marks omitted).
- The General Assembly adopted the plan on a party-line vote. See id., at 506.
Maryland‘s Democrats proved no less successful than North Carolina‘s Republicans in devising a voter-proof map. In the four elections that followed (from 2012 through 2018), Democrats have never received more than 65% of the statewide congressional vote. Yet in each of those elections, Democrats have won (you guessed it) 7 of 8
B
Now back to the question I asked before: Is that how American democracy is supposed to work? I have yet to meet the person who thinks so.
“Governments,” the Declaration of Independence states, “deriv[e] their just Powers from the Consent of the Governed.” The Constitution begins: ”
Free and fair and periodic elections are the key to that vision. The people get to choose their representatives. And then they get to decide, at regular intervals, whether to keep them. Madison again: “[R]epublican liberty” demands “not only, that all power should be derived from the people; but that those entrusted with it should be kept in dependence on the people.” 2 The Federalist No. 37, p. 4 (J. & A. McLean eds. 1788). Members of the House of Representatives, in particular, are supposed to “recollect[ ] [that] dependence” every day. Id., No. 57, at 155. To retain an “intimate sympathy with the people,” they must be “compelled to anticipate the moment” when their “exercise of [power] is to be reviewed.” Id., Nos. 52, 57, at 124, 155. Election day—next year, and two years later, and two years after that—is what links the people to their representatives, and gives the people their sovereign power. That day is the foundation of democratic governance.
And partisan gerrymandering can make it meaningless. At its most extreme—as in North Carolina and Maryland—the practice amounts to “rigging elections.” Vieth v. Jubelirer, 541 U. S. 267, 317 (2004) (Kennedy, J., concurring in judgment) (internal quotation marks omitted). By drawing districts to maximize the power of some voters and minimize the power of others, a party in office at the right time can entrench itself there for a decade or more, no matter what the voters would prefer. Just ask the people of North Carolina and Maryland. The “core principle of republican government,” this Court has recognized, is “that the voters should choose their representatives, not the other way around.” Arizona State Legislature v. Arizona Independent Redistricting Comm‘n, 576 U. S. ___, ___ (2015) (slip op., at 35) (internal quotation marks omitted). Partisan gerrymandering turns it the other way around. By that mechanism, politicians can cherry-pick voters to ensure their reelection. And the power becomes, as Madison put it, “in the Government over the people.” 4 Annals of Cong. 934.
The majority disputes none of this. I think it important to underscore that fact: The majority disputes none of what I have said (or will say) about how gerrymanders undermine democracy. Indeed, the majority concedes (really, how could it not?) that gerrymandering is “incompatible with democratic principles.” Ante, at 30 (quoting Arizona State Legislature, 576 U. S., at ___ (slip op., at 1)). And therefore what? That recognition would seem to demand a response. The majority offers two ideas that might qualify as such. One is that the political process can deal with the problem—a proposition so dubious on its face that I feel secure in delaying my answer for some time. See ante, at 31–33; infra, at 29–31. The other is that political gerrymanders have always been with us. See ante, at 8, 24. To its credit, the majority does not frame that point as an originalist constitutional argument.
That complacency has no cause. Yes, partisan gerrymandering goes back to the Republic‘s earliest days. (As does vociferous opposition to it.) But big data and modern technology—of just the kind that the mapmakers in North Carolina and Maryland used—make today‘s gerrymandering altogether different from the crude linedrawing of the past. Old-time efforts, based on little more than guesses, sometimes led to so-called dummymanders—gerrymanders that went spectacularly wrong. Not likely in today‘s world. Mapmakers now have access to more granular data about party preference and voting behavior than ever before. County-level voting data has given way to precinct-level or city-block-level data; and increasingly, mapmakers avail themselves of data sets providing wide-ranging information about even individual voters. See Brief for Political Science Professors as Amici Curiae 20–22. Just as important, advancements in computing technology have enabled mapmakers to put that information to use with unprecedented efficiency and precision. See id., at 22–25. While bygone mapmakers may have drafted three or four alternative districting plans, today‘s mapmakers can generate thousands of possibilities at the touch of a key—and then choose the one giving their party maximum advantage (usually while still meeting tradi-
The proof is in the 2010 pudding. That redistricting cycle produced some of the most extreme partisan gerrymanders in this country‘s history. I‘ve already recounted the results from North Carolina and Maryland, and you‘ll hear even more about those. See supra, at 4–6; infra, at 19–20. But the voters in those States were not the only ones to fall prey to such districting perversions. Take Pennsylvania. In the three congressional elections occurring under the State‘s original districting plan (before the State Supreme Court struck it down), Democrats received between 45% and 51% of the statewide vote, but won only 5 of 18 House seats. See League of Women Voters v. Pennsylvania, ___ Pa. ___, 178 A. 3d 737, 764 (2018). Or go next door to Ohio. There, in four congressional elections, Democrats tallied between 39% and 47% of the statewide vote, but never won more than 4 of 16 House seats. See Ohio A. Philip Randolph Inst. v. Householder, 373 F. Supp. 3d 978, 1074 (SD Ohio 2019). (Nor is there any reason to think that the results in those States stemmed from political geography or non-partisan districting criteria, rather than from partisan manipulation. See infra, at 15, 31.) And gerrymanders will only get worse (or depending on your perspective, better) as time goes on—as data becomes ever more fine-grained and data analysis techniques continue to improve. What was possible with paper and pen—or even with Windows 95—doesn‘t hold a candle (or an LED bulb?) to what will become possible with developments like machine learning. And someplace along this road, “we the people” become sovereign no longer.
C
Partisan gerrymandering of the kind before us not only subverts democracy (as if that weren‘t bad enough). It violates individuals’ constitutional rights as well. That statement is not the lonesome cry of a dissenting Justice. This Court has recognized extreme partisan gerrymandering as such a violation for many years.
Partisan gerrymandering operates through vote dilution—the devaluation of one citizen‘s vote as compared to others. A mapmaker draws district lines to “pack” and “crack” voters likely to support the disfavored party. See generally Gill v. Whitford, 585 U. S. ___, ___ (2018) (slip op., at 14–16). He packs supermajorities of those voters into a relatively few districts, in numbers far greater than needed for their preferred candidates to prevail. Then he cracks the rest across many more districts, spreading them so thin that their candidates will not be able to win. Whether the person is packed or cracked, his vote carries less weight—has less consequence—than it would under a neutrally drawn (non-partisan) map. See id., at ___ (KAGAN, J., concurring) (slip op., at 4). In short, the mapmaker has made some votes count for less, because they are likely to go for the other party.
That practice implicates the
And partisan gerrymandering implicates the
Though different Justices have described the constitutional harm in diverse ways, nearly all have agreed on this much: Extreme partisan gerrymandering (as happened in North Carolina and Maryland) violates the Constitution. See, e.g., Vieth, 541 U. S., at 293 (plurality opinion) (“[A]n excessive injection of politics [in districting] is unlawful” (emphasis deleted)); id., at 316 (opinion of Kennedy, J.) (“[P]artisan gerrymandering that disfavors one party is [im]permissible“); id., at 362 (BREYER, J., dissenting) (Gerrymandering causing political “entrenchment” is a “violat[ion of] the Constitution‘s
II
So the only way to understand the majority‘s opinion is as follows: In the face of grievous harm to democratic
The majority gives two reasons for thinking that the adjudication of partisan gerrymandering claims is beyond judicial capabilities. First and foremost, the majority says, it cannot find a neutral baseline—one not based on contestable notions of political fairness—from which to measure injury. See ante, at 15–19. According to the majority, “[p]artisan gerrymandering claims invariably sound in a desire for proportional representation.” Ante, at 16. But the Constitution does not mandate proportional representation. So, the majority contends, resolving those claims “inevitably” would require courts to decide what is “fair” in the context of districting. Ante, at 17. They would have “to make their own political judgment about how much representation particular political parties deserve” and “to rearrange the challenged districts to achieve that end.” Ibid. (emphasis in original). And second, the majority argues that even after establishing a baseline, a court would have no way to answer “the determinative question: ‘How much is too much?‘” Ante, at 19. No “discernible and manageable” standard is available, the majority claims—and so courts could willy-nilly become embroiled in fixing every districting plan. Ante, at 20; see ante, at 15-16.
I‘ll give the majority this one—and important—thing: It identifies some dangers everyone should want to avoid. Judges should not be apportioning political power based on their own vision of electoral fairness, whether proportional representation or any other. And judges should not
But in throwing up its hands, the majority misses something under its nose: What it says can‘t be done has been done. Over the past several years, federal courts across the country—including, but not exclusively, in the decisions below—have largely converged on a standard for adjudicating partisan gerrymandering claims (striking down both Democratic and Republican districting plans in the process). See also Ohio A. Philip Randolph Inst., 373 F. Supp. 3d 978; League of Women Voters of Michigan v. Benson, 373 F. Supp. 3d 867 (ED Mich. 2019). And that standard does what the majority says is impossible. The standard does not use any judge-made conception of electoral fairness—either proportional representation or any other; instead, it takes as its baseline a State‘s own criteria of fairness, apart from partisan gain. And by requiring plaintiffs to make difficult showings relating to both purpose and effects, the standard invalidates the most extreme, but only the most extreme, partisan gerrymanders.
Below, I first explain the framework courts have developed, and describe its application in these two cases. Doing so reveals in even starker detail than before how much these partisan gerrymanders deviated from democratic norms. As I lay out the lower courts’ analyses, I consider two specific criticisms the majority levels—each of which reveals a saddening nonchalance about the threat such districting poses to self-governance. All of that lays the groundwork for then assessing the majority‘s more general view, described above, that judicial policing in this area cannot be either neutral or restrained. The lower courts’ reasoning, as I‘ll show, proves the opposite.
A
Start with the standard the lower courts used. The majority disaggregates the opinions below, distinguishing the one from the other and then chopping up each into “a number of ‘tests.‘” Ante, at 22; see ante, at 22–30. But in doing so, it fails to convey the decisions’ most significant—and common—features. Both courts focused on the harm of vote dilution, see supra, at 11, though the North Carolina court mostly grounded its analysis in the
Turn now to the test‘s application. First, did the North Carolina and Maryland districters have the predominant
The majority‘s response to the District Courts’ purpose analysis is discomfiting. The majority does not contest the lower courts’ findings; how could it? Instead, the majority says that state officials’ intent to entrench their party in power is perfectly “permissible,” even when it is the predominant factor in drawing district lines. Ante, at 23. But that is wrong. True enough, that the intent to inject “political considerations” into districting may not raise any constitutional concerns. In Gaffney v. Cummings, 412 U. S. 735 (1973), for example, we thought it non-problematic when state officials used political data to ensure rough proportional representation between the two parties. And true enough that even the naked purpose to gain partisan advantage may not rise to the level of constitutional notice when it is not the driving force in mapmaking or when the intended gain is slight. See Vieth, 541 U. S., at 286 (plurality opinion). But when political actors have a specific and predominant intent to entrench themselves in power by manipulating district lines, that goes
On to the second step of the analysis, where the plaintiffs must prove that the districting plan substantially dilutes their votes. The majority fails to discuss most of the evidence the District Courts relied on to find that the plaintiffs had done so. See ante, at 23–24. But that evidence—particularly from North Carolina—is the key to understanding both the problem these cases present and the solution to it they offer. The evidence reveals just how bad the two gerrymanders were (in case you had any doubts). And it shows how the same technologies and data that today facilitate extreme partisan gerrymanders also enable courts to discover them, by exposing just how much they dilute votes. See Vieth, 541 U. S., at 312–313 (opinion of Kennedy, J.) (predicting that development).
Consider the sort of evidence used in North Carolina first. There, the plaintiffs demonstrated the districting plan‘s effects mostly by relying on what might be called the “extreme outlier approach.” (Here‘s a spoiler: the State‘s plan was one.) The approach—which also has recently been used in Michigan and Ohio litigation—begins by using advanced computing technology to randomly generate a large collection of districting plans that incorporate the State‘s physical and political geography and meet its declared districting criteria, except for partisan gain. For each of those maps, the method then uses
Using that approach, the North Carolina plaintiffs offered a boatload of alternative districting plans—all showing that the State‘s map was an out-out-out-outlier. One expert produced 3,000 maps, adhering in the way described above to the districting criteria that the North Carolina redistricting committee had used, other than partisan advantage. To calculate the partisan outcome of those maps, the expert also used the same election data (a composite of seven elections) that Hofeller had employed when devising the North Carolina plan in the first instance. The results were, shall we say, striking. Every single one of the 3,000 maps would have produced at least one more Democratic House Member than the State‘s actual map, and 77% would have elected three or four more. See Rucho, 318 F. Supp. 3d, at 875–876, 894; App.
Because the Maryland gerrymander involved just one district, the evidence in that case was far simpler—but no less powerful for that. You‘ve heard some of the numbers before. See supra, at 6. The 2010 census required only a minimal change in the Sixth District‘s population—the subtraction of about 10,000 residents from more than 700,000. But instead of making a correspondingly minimal adjustment, Democratic officials reconfigured the entire district. They moved 360,000 residents out and another 350,000 in, while splitting some counties for the first time in almost two centuries. The upshot was a district with 66,000 fewer Republican voters and 24,000 more Democratic ones. In the old Sixth, 47% of registered voters were Republicans and only 36% Democrats. But in the new Sixth, 44% of registered voters were Democrats and only 33% Republicans. That reversal of the district‘s partisan composition translated into four consecutive Democratic victories, including in a wave election year for
The majority claims all these findings are mere “prognostications” about the future, in which no one “can have any confidence.” Ante, at 23 (internal quotation marks omitted). But the courts below did not gaze into crystal balls, as the majority tries to suggest. Their findings about these gerrymanders’ effects on voters—both in the past and predictably in the future—were evidence-based, data-based, statistics-based. Knowledge-based, one might say. The courts did what anyone would want a decisionmaker to do when so much hangs in the balance. They looked hard at the facts, and they went where the facts led them. They availed themselves of all the information that mapmakers (like Hofeller and Hawkins) and politicians (like Lewis and O‘Malley) work so hard to amass and then use to make every districting decision. They refused to content themselves with unsupported and out-of-date musings about the unpredictability of the American voter. See ante, at 24-25; but see Brief for Political Science Professors as Amici Curiae 14–20 (citing chapter and verse to the contrary). They did not bet America‘s future—as today the majority does—on the idea that maps constructed with so much expertise and care to make electoral outcomes impervious to voting would somehow or other come apart. They looked at the evidence—at the facts about how these districts operated—and they could reach only one conclusion. By substantially diluting the votes of citizens favoring their rivals, the politicians of one party had succeeded in entrenching themselves in office. They had beat democracy.
KAGAN, J., dissenting
B
The majority‘s broadest claim, as I‘ve noted, is that this is a price we must pay because judicial oversight of partisan gerrymandering cannot be “politically neutral” or “manageable.” Ante, at 19; see supra, at 14. Courts, the majority argues, will have to choose among contested notions of electoral fairness. (Should they take as the ideal mode of districting proportional representation, many competitive seats, adherence to traditional districting criteria, or so forth?) See ante, at 16-19. And even once courts have chosen, the majority continues, they will have to decide “[h]ow much is too much?“—that is, how much deviation from the chosen “touchstone” to allow? Ante, at 19-20. In answering that question, the majority surmises, they will likely go far too far. See ante, at 15. So the whole thing is impossible, the majority concludes. To prove its point, the majority throws a bevy of question marks on the page. (I count nine in just two paragraphs. See ante, at 19-20.) But it never tries to analyze the serious question presented here—whether the kind of standard developed below falls prey to those objections, or instead allows for neutral and manageable oversight. The answer, as you‘ve already heard enough to know, is the latter. That kind of oversight is not only possible; it‘s been done.
Consider neutrality first. Contrary to the majority‘s suggestion, the District Courts did not have to—and in fact did not—choose among competing visions of electoral fairness. That is because they did not try to compare the State‘s actual map to an “ideally fair” one (whether based on proportional representation or some other criterion). Instead, they looked at the difference between what the State did and what the State would have done if politicians hadn‘t been intent on partisan gain. Or put differently, the comparator (or baseline or touchstone) is the result not of a judge‘s philosophizing but of the State‘s own
The North Carolina litigation well illustrates the point. The thousands of randomly generated maps I‘ve mentioned formed the core of the plaintiffs’ case that the North Carolina plan was an “extreme[] outlier.” Rucho, 318 F. Supp. 3d, at 852 (internal quotation marks omitted); see supra, at 18-20. Those maps took the State‘s political landscape as a given. In North Carolina, for example, Democratic voters are highly concentrated in cities. That fact was built into all the maps; it became part of the baseline. See Rucho, 318 F. Supp. 3d, at 896-897. On top of that, the maps took the State‘s legal landscape as a given. They incorporated the State‘s districting priorities, excluding partisanship. So in North Carolina, for example, all the maps adhered to the traditional criteria of contiguity and compactness. See supra, at 19-20. But the comparator maps in another State would have incorporated different objectives—say, the emphasis Arizona places on competitive districts or the requirement Iowa imposes that counties remain whole. See Brief for Mathematicians et al. as Amici Curiae 19-20. The point is that the assemblage of maps, reflecting the characteristics and
The Maryland court lacked North Carolina‘s fancy evidence, but analyzed the gerrymander‘s effects in much the same way—not as against an ideal goal, but as against an ex ante baseline. To see the difference, shift gears for a moment and compare Maryland and Massachusetts—both of which (aside from Maryland‘s partisan gerrymander) use traditional districting criteria. In those two States alike, Republicans receive about 35% of the vote in statewide elections. See Almanac of American Politics 2016, at 836, 880. But the political geography of the States differs. In Massachusetts, the Republican vote is spread evenly across the State; because that is so, districting plans (using traditional criteria of contiguity and compactness) consistently lead to an all-Democratic congressional delegation. By contrast, in Maryland, Republicans are clumped—into the Eastern Shore (the First District) and the Northwest Corner (the old Sixth). Claims of partisan gerrymandering in those two States could come out the same way if judges, à la the majority, used their own visions of fairness to police districting plans; a judge in each State could then insist, in line with proportional representation, that 35% of the vote share entitles citizens to around that much of the delegation. But those suits would not come out the same if courts instead asked: What would have happened, given the State‘s natural political geography and chosen districting criteria, had officials not indulged in partisan manipulation? And that is what the District Court in Maryland inquired into. The court did not strike down the new Sixth District because a judicial
The majority‘s sole response misses the point. According to the majority, “it does not make sense to use” a State‘s own (non-partisan) districting criteria as the baseline from which to measure partisan gerrymandering because those criteria “will vary from State to State and year to year.” Ante, at 27. But that is a virtue, not a vice—a feature, not a bug. Using the criteria the State itself has chosen at the relevant time prevents any judicial predilections from affecting the analysis—exactly what the majority claims it wants. At the same time, using those criteria enables a court to measure just what it should: the extent to which the pursuit of partisan advantage—by these legislators at this moment—has distorted the State‘s districting decisions. Sure, different non-partisan criteria could result, as the majority notes, in different partisan distributions to serve as the baseline. Ante, at 28. But that in itself raises no issue: Everyone agrees that state officials using non-partisan criteria (e.g., must counties be kept together? should districts be compact?) have wide latitude in districting. The problem arises only when legislators or mapmakers substantially deviate from the baseline distribution by manipulating district lines for partisan gain. So once again, the majority‘s analysis falters because it equates the demand to eliminate partisan gerrymandering with a demand for a single partisan distribution—the one reflecting proportional representation. See ante, at 16-17. But those two demands are different, and only the former is at issue here.
The majority‘s “how much is too much” critique fares no better than its neutrality argument. How about the following for a first-cut answer: This much is too much. By
And if the majority thought that approach too case-specific, see ante, at 28, it could have used the lower courts’ general standard—focusing on “predominant” purpose and “substantial” effects—without fear of indeterminacy. I do not take even the majority to claim that courts are incapable of investigating whether legislators mainly intended to seek partisan advantage. See ante, at 19-20 (focusing on the difficulty of measuring effects). That is for good reason. Although purpose inquiries carry certain hazards (which courts must attend to), they are a common form of analysis in constitutional cases. See, e.g., Miller v. Johnson, 515 U. S. 900, 916 (1995); Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 533 (1993); Washington v. Davis, 426 U. S. 229, 239 (1976). Those inquiries would be no harder here than in other contexts.
And the combined inquiry used in these cases set the bar high, so that courts could intervene in the worst partisan gerrymanders, but no others. Or to say the same thing, so that courts could intervene in the kind of extreme gerrymanders that nearly every Justice for decades has thought to violate the Constitution. See supra, at 13.
The majority, in the end, fails to understand both the plaintiffs’ claims and the decisions below. Everything in today‘s opinion assumes that these cases grew out of a “desire for proportional representation” or, more generally phrased, a “fair share of political power.” Ante, at 16, 21. And everything in it assumes that the courts below had to (and did) decide what that fair share would be. But that is
III
This Court has long understood that it has a special responsibility to remedy violations of constitutional rights resulting from politicians’ districting decisions. Over 50 years ago, we committed to providing judicial review in that sphere, recognizing as we established the one-person-one-vote rule that “our oath and our office require no less.” Reynolds, 377 U. S., at 566. Of course, our oath and our office require us to vindicate all constitutional rights. But the need for judicial review is at its most urgent in cases like these. “For here, politicians’ incentives conflict with voters’ interests, leaving citizens without any political remedy for their constitutional harms.” Gill, 585 U. S., at ___ (KAGAN, J., concurring) (slip op., at 14). Those harms arise because politicians want to stay in office. No one can look to them for effective relief.
The majority disagrees, concluding its opinion with a paean to congressional bills limiting partisan gerrymanders. “Dozens of [those] bills have been introduced,” the majority says. Ante, at 33. One was “introduced in 2005 and has been reintroduced in every Congress since.” Ibid.
No worries, the majority says; it has another idea. The majority notes that voters themselves have recently approved ballot initiatives to put power over districting in the hands of independent commissions or other non-partisan actors. See ante, at 32. Some Members of the majority, of course, once thought such initiatives unconstitutional. See Arizona State Legislature, 576 U. S., at ___ (ROBERTS, C. J., dissenting) (slip op., at 1). But put that aside. Fewer than half the States offer voters an opportunity to put initiatives to direct vote; in all the rest (including North Carolina and Maryland), voters are dependent on legislators to make electoral changes (which for all the reasons already given, they are unlikely to do). And even when voters have a mechanism they can work themselves, legislators often fight their efforts tooth and nail. Look at Missouri. There, the majority touts a voter-approved proposal to turn districting over to a state demographer. See ante, at 32. But before the demographer had drawn a single line, Members of the state legislature had introduced a bill to start undoing the change. See
The majority‘s most perplexing “solution” is to look to state courts. Ante, at 30. “[O]ur conclusion,” the majority states, does not “condemn complaints about districting to echo into a void“: Just a few years back, “the Supreme Court of Florida struck down that State‘s congressional districting plan as a violation” of the State Constitution.
We could have, and we should have. The gerrymanders here—and they are typical of many—violated the constitutional rights of many hundreds of thousands of American citizens. Those voters (Republicans in the one case, Democrats in the other) did not have an equal opportunity to participate in the political process. Their votes counted for far less than they should have because of their partisan affiliation. When faced with such constitutional wrongs, courts must intervene: “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). That is what the courts below did. Their decisions are worth a read. They (and others that have recently remedied similar violations) are detailed, thorough, painstaking. They
That is not to deny, of course, that these cases have great political consequence. They do. Among the amicus briefs here is one from a bipartisan group of current and former Members of the House of Representatives. They describe all the ways partisan gerrymandering harms our political system—what they call “a cascade of negative results.” Brief as Amicus Curiae 5. These artificially drawn districts shift influence from swing voters to party-base voters who participate in primaries; make bipartisanship and pragmatic compromise politically difficult or impossible; and drive voters away from an ever more dysfunctional political process. See id., at 5-6. Last year, we heard much the same from current and former state legislators. In their view, partisan gerrymandering has “sounded the death-knell of bipartisanship,” creating a legislative environment that is “toxic” and “tribal.” Brief as Amicus Curiae in Gill v. Whitford, O. T. 2016, No. 16–1161, pp. 6, 25. Gerrymandering, in short, helps create the polarized political system so many Americans loathe.
And gerrymandering is, as so many Justices have emphasized before, anti-democratic in the most profound sense. See supra, at 7–8. In our government, “all political power flows from the people.” Arizona State Legislature, 576 U. S., at ___ (slip op., at 35). And that means, as Alexander Hamilton once said, “that the people should choose whom they please to govern them.” 2 Debates on the Constitution 257 (J. Elliot ed. 1891). But in Maryland and North Carolina they cannot do so. In Maryland, election in and election out, there are 7 Democrats and 1 Republican in the congressional delegation. In North Carolina, however the political winds blow, there are 10
Of all times to abandon the Court‘s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court‘s role in that system is to defend its foundations. None is more important than free and fair elections. With respect but deep sadness, I dissent.