Vieth v. Jubelirer

THE OF JUBELIRER, PRESIDENT VIETH et al. v. SENATE, PENNSYLVANIA et al. April 2003 Decided 02-1580. December

No. Argued Paul M. Smith for With him cause appellants. argued Spiva, Perrelli, Bruce V. Sam on the briefs were Thomas J. B. Daniel Robert Hirsch, Mach, and Hoffman. P. Krill, Jr.,

John the cause for Jubelirer argued appellee With him on the brief were Linda J. and Julia et al. Shorey DeLone, M. Bart Glencer. J. Senior Gen Deputy Attorney eral the cause for Pennsylvania, Cortés argued appellee With were D. et al. him brief Fisher, Michael on the Attor III, John G. Knorr General, and ney Chief Attor Deputy General.* ney announced the and Court judgment

Justice Scalia an delivered in which The Chief opinion, Justice, Justice and Justice join. O’Connor, Thomas Richard Vieth, Norma Vieth, Jean Plaintiffs-appellants Susan drawn Furey challenge map by Pennsylvania General districts for the election of Assembly establishing on the congressional dis- Representatives, ground constitutes an tricting unconstitutional political gerryman- Bandemer, Davis der.1 In (1986), U. S. 109 this Court held that claims are political but gerrymandering justiciable,

* Briefs of amici curiae reversal urging were filed for the Texas House Karlan; Hebert by J. Gerald Pamela S. Democratic Caucus et al. for Neubome, Burt the American Civil Union al. by Deborah Liberties et Gass, Goldberg, J. J. Steven R. N. Shapiro, Eisenberg, Arthur Laughlin McDonald, and Neil B. Bradley; by Alan Mor for Public Citizen et al. rison, Frost, Nelson; for Amanda and Scott the Reform by Institute et al. Potter; Daniel R. Ortiz Trevor Einer El for JoAnn al. by Erfer et hauge; State Senator Robert J. Mellow by Gladys Pennsylvania and for M. Brown. for

Briefs of amici curiae were filed Alabama State Senator Lowell and Robert D. Segall; James U. Blacksher Barron et al. for the Center by Raskin; Processes, Inc., Jamin B. Research into Governmental Sinder; Scott A Liberty Project by DKT for Bernard Grofinan et al. by H. Witherby; Reed R. Guerra N. Rakove by Joseph and for Jack et al. and Stephen B. Kinnaird. 1The has been “[t]he term defined as “political practice gerrymander” districts, into electoral often of ir highly area dividing geographical advantage by an unfair regular party diluting one shape, give (7th Black’s Law strength.” Dictionary ed. opposition’s voting 1999). a standard them. adjudicate The upon could agree the whether our questions decision present appeal presents in Bandemer error, and, not, if was in what the standard should be.

I the are as facts, as follows. The by plaintiffs, The alleged the derived from 2000 census showed that figures population entitled to was in Con- only Representatives Pennsylvania the in 2 from a decrease Commonwealth’s previous gress, General took the Pennsylvania’s Assembly delegation. up a new At time, task of the districting the drawing map. controlled a of both state Houses Party majority Republican office. Prominent national held the Governor’s figures the General Party pressured Republican Assembly as a measure partisan redistricting plan punitive adopt enacted Democrats redis- having against pro-Democrat elsewhere. members of Penn- tricting plans Republican House and Senate worked on such together sylvania’s plan. 3, 2002, its the General Assembly On January passed plan, which into law Act 1. was Governor Schweiker as signed by who

Plaintiffs, Democrats vote registered Pennsylvania, suit States Court for the the United District brought Middle District of Pennsylvania, seeking enjoin implemen- § § tation of Act 1 U. S. 1983. under Rev. Stat. C. Commonwealth Pennsyl- were Defendants-appellees various officers vania and executive respon- legislative sible Act 1. The complaint enacting implementing mal- created other alleged, among legislation things, one-vote districts, in violation of one-person, apportioned I, § United States Constitu- Article of the requirement in viola- tion, and that constituted political gerrymander, Four- Article I tion of and the Protection Clause Equal contention, latter teenth Amendment. With regard 1 Act created districts complaint alleged tra- all and “ignorfed] were “meandering irregular,” ditional criteria, preservation including redistricting the sake of boundaries, partisan solely government local 135a, 20. 136a, 22, ¶ ¶ Statement Juris. advantage.” to 28 C. U. S. convened was pursuant A three-judge panel to dismiss. The District moved The §2284. defendants to the with respect motion political gerry Court granted all (on Eleventh Amendment grounds) claim, and mandering Commonwealth; but it to dismiss declined claims against See Vieth . other defendants as to claim the apportionment (Vieth Pennsylvania, (MD 2002) 2d 532 Pa. 188 F. Supp. v. I). claim, the District Court trial of the On apportionment Pennsylvania, Vieth v. in favor of See ruled plaintiffs. II). (Vieth 2002) (MD It retained 2d 672 Pa. F. juris Supp. the court’s review and over the case approval diction pending 18, 2002, On Gover of a remedial plan. April redistricting 2002-34, law Pa. Stat. into No. nor Schweiker Act. signed 2003) (Act (Purdon 34), a re §25, Tit. 3595.301 Ann., Supp. had General Assembly medial Pennsylvania plan of Act 1. cure the enacted to apportionment problem districts, moved to remedial arguing Plaintiffs impose Act 34 to be should not consider proper the District Court scheme, both because was remedial malapportioned, an unconstitutional political gerryman- it constituted because mo- this District Court denied like its The der predecessor. were not malappor- the new districts tion, concluding claim tioned, gerrymandering and rejecting Penn- I. Vieth Vieth the reasons assigned previously (Vieth 2003) sylvania, III). (MD Pa. 2d 484-485 241 F. Supp. Act 34 of their the dismissal appealed plaintiffs juris- claim.2 We noted probable political gerrymandering (2003). U. S. diction. allege complaint never amended their apparently The plaintiffs Court’s decision yet the District gerrymander, 34 was a political

Act ju subject-matter Vieth III resolved that claim on the merits. Because we point, has raised party and neither implicated risdiction is not complaint original the plaintiffs’ District Court deemed assume that constructively been amended. to have

II gerrymanders Political new the American scene. Colony,of Pennsylvania traces them One scholar back century, beginning of the several at the 18th where counties conspired political power city to minimize the of Phila- refusing merge expand delphia by it to to allow into sur- denying rounding jurisdictions, representa- it additional Development Griffith, tives. E. The Rise and (hereinafter Griffith). Gerrymander 26-28 In 1732, Majesty’s attorney two of His gen- members Council and the deputy inspector comptroller general eral of affairs reported the Province of North Carolina that the Gover- proceeded nor by had to “divide old Precincts established whereby Law, new in Places, & to enact Ones his Arts he prepossess People has to endeavoured in a future election according Designs being desire, to his his herein .. . either by get Majority to endeavour his means a of his creatures disrupt in assembly’s proceed- House” Lower or to (W. ings. 3 of North Colonial Records Carolina 380-381 1886); political gerry- Saunders ed. see Griffith also 29. The yet (though mander remained alive well by not known name) framing. the time of the allega- There were Henry attempted Patrick (unsuccessfully) tions that ger- rymander Congress. of the James Madison out First 2 W. Life and of James (reprint Rives, 655, Times Madison n. 1970); from Letter Thomas Jefferson to Short, William Feb. (P. reprinted 9, 1789, in 5 Works of Thomas Jefferson 1904). Ford And in course, ed. there occurred the notoriously political districting outrageous in Massachusetts gave gerrymander its amalgam name—an Elbridge Gerry names of Massachusetts Governor and the (“salamander”) creature which outline of an dis- election forming thought trict he was was credited to resemble. (2d Dictionary See Webster’s New International ed. 1945). “By gerrymander recognized 1840the was a in force party politics generally attempted and was legislation all gen- for the formation of was election districts. It enacted erally power party attempt gain each conceded that would proportionate strength.” was its numerical which 123. Griffith significant remedy provided that the

It is Framers § practices in the I, such Constitution. while leav- Article legislatures ing power in state the initial to draw districts permitted Congress elections, federal to “make or alter” Many objected if congres- those districts it wished.3 to the oversight by provision. established this sional In the course in the of the debates Constitutional Convention, Charles Pinckney Rutledge and John moved to strike the relevant language. responded pro- James Madison in defense of the Congress given power vision that must par- to check manipulation process tisan of the election the States: Legislatures “Whenever the State had favorite meas- carry, they reg- ure to would take care so to mould their they ulations as to favor the candidates wished to suc- inequality Representation Besides, ceed. Legislatures particular produce States, would inequality representation Legis- like their in the Natl. presumable having lature, as it was that the Counties power case the in the former would secure it to them- danger giv- selves in the latter. What could there be in Legislature?” ing controuling power to the 2 Natl. pp. of 1787, Records of the Federal Convention 240-241 (M. 1911). Farrand ed. Pinckney Rutledge oppo-

Although and failed, the of motion §4 provision I, sition or of Article to the “make alter” —and prevent political gerryman- the defense that it was needed 3 I, §4, provides Article as follows: Times, Elections for holding

“The Places and and Manner of Senators by in each State the Representatives, prescribed Legislature shall be Law thereof; time make or such any alter Congress may but Senators.” chusing as to of Regulations, except the Places 276 to be voiced in the state de- dering ratifying —continued A Massachusetts

bates. convention warned delegate state legislatures an and make unequal division of the partial “might for the states districts election of into representatives, even one third of the they disqualify electors. might these Without can have powers Congress, people but the 4th section no con- provides remedy; remedy, ain of legislature, senators and trolling power composed of states, twelve without influence representatives factions, of our commotions and who will hear impar- and restore to the tially, their preserve people equal of election.” 2 sacred Debates on the Fed- rights (J. 1876). eral Constitution 27 Elliot 2d ed. bestowed on power Congress elections, regulate

and in to restrain the particular practice political gerry- has lain dormant. In mandering, Apportionment 1842, Act of 491, Stat. Congress provided Representa- tives must be elected from districts “com- single-member See Griffith 12 posed contiguous territory.” (noting the law was “an to forbid the attempt practice gerry- mander”). these Congress imposed again requirements 1862, 572, Act of Stat. and in 1872 Apportionment further that districts as required “contain] nearly practi- inhabitants,” cable an number of 28, § Stat. 2. In equal Act of a com- Apportionment Congress imposed 31 Stat. 733. The pactness requirement. requirements re- were contiguity, equality compactness, population in the 37 Stat. peated legislation, apportionment but were not thereafter continued. Today, only single- § remains. See U. S. C. 2c. member-district-requirement however, Recent awareness of history, attests Congress’s and of its the sort districting practices protest, appellants 1980, them. Since no I, §4, under Article to control power than five fewer bills been introduced have regulate gerry-

277 5037, H. R. districting. mandering congressional 1711,101st H. 1st Sess. (1990); 2d R. Sess. Cong., 101st Cong., 5529, (1983); 1st Sess. H. R. H. R. 98th (1989); Cong., 1st (1982); H. R. 97th 2d Sess. Cong., Cong., 97th (1981).4 Sess. we held that Protection years Equal ago,

Eighteen control duty politi- grants Clause judges power —to —and Bandemer, see Davis v. S. 109 U. cal gerrymandering, (1986). of this that we It is to consideration precedent now turn.

Ill two centuries Marshall ago, As Chief Justice proclaimed de of the duty judicial province “[i]t emphatically Marbury Madison, v. what the law is.” to say partment (1803). Sometimes, the law is that however, 137, 177 Cranch no business has entertaining the judicial department is entrusted to claim unlawfiilness —because question or involves no enforce branches judicially one political g., States, Nixon v. United See, e. S. 224 able rights. used in Senate impeachment (challenge procedures Telephone Telegraph v. Or & Co. States proceedings); Pacific egon, (1912) (claims under Guaranty 223 U. S. 118 arising §4). are said to be IV, Such of Article questions Clause or “political “nonjusticiable,” questions.” Carr, 369 U. S. In Baker forth six (1962), we set of a for the existence political question: tests independent commitment demonstrable constitutional a textually “[1] or [2] a coordinate of the issue to department; stand- discoverable manageable a lack of judicially course, abusive States, prevent have their own steps taken redistricting, adopted have standards districting practices. A number g., e. See, from process politics. to insulate designed measures §25-2 §42.4(5) §2; (2003); Const., II, Haw. Rev. Stat. N. Art. Iowa J. Code 21-A, Ann., (1948-1999); (1993); §72-1506 Tit. Me. Rev. Stat. Idaho Code (2003); (West 2003); §5-1-115 Ann. §§1206, Mont. Code 1206-A Supp. (1994). §44.05.090 Wash. Rev. Code

ards for resolving it; or ^[3] the impossibility of deciding initial without an determination of a kind policy clearly for nonjudicial discretion; or ^[4] the impossibility of a resolution court’s without ex- undertaking independent lack of the due coordinate branches pressing respect government; or ^[5] an unusual need for unquestioning adherence to decision already made; ^[6] of embarrassment from multifarious potentiality pro- nouncements various on one by departments question.” Id., at 217. tests

These listed order of both probably descending and The second is at here, issue and importance certainty. there is doubt of its no “The Power” cre validity. judicial whatever III, 1,§ ated Article of the Constitution is not by Valley Forge College Christian do, choose to see v. judges Separation Americans State, Inc., United Church and Grupo Desarrollo, Mexicano de (1982); 454 U. S. cf. 464, Inc., Fund, S. A. v. Alliance Bond U. S. 332-333 (1999), or even whatever chooses them, Congress assign Lujan see Wildlife, U. S. 576-577 Defenders of Chicago Lines, & Southern Air Inc. v. Waterman (1992); Corp., S. S. (1948). 103, 110-114 333 U. S. It is the power act the manner traditional and American English courts. One of the most obvious limitations imposed by is that action be must requirement judicial governed by standard, rule. Laws by promulgated by Legislative inconsistent, Branch can be ad hoc; law illogical, pro rational, nounced the courts must be and based by principled, reasoned distinctions. upon Court held in Davis Justices,

Over dissent of three v. Bandemer that, since it was “not that there are persuaded no discernible standards which judicially manageable by decided,” cases are 478 U. political gerrymander 123, such cases were justiciable. clumsy shifting (the burden for the was “not Court proof premise per- exist, suaded” that do not rather than standards “persuaded” do) by fact that they the uncomfortable was necessitated judicially majority not discern what could six-Justice majority on might There was no standards be. discernable justiciability finding be- point. Four the Justices (plural- thing, at 127 id., was one see standard lieved joined Marshall, opinion ity Brennan, of White, J., JJ.); something else, id., see it was Blackmun, two believed (Powell, concurring part joined by J., J., 161 Stevens, dissenting part). have lived The lower courts (or precisely, lack of assur- assurance of more a standard standard), inability coupled there is with that no ance past years. specify time, In that standard, 18 for the political gerrymandering they have considered numerous ques- this the unanswered claims; Court has never revisited governs. what tion of standard have, courts over 18

Nor can it be said that lower years, shaping succeeded in that this was the standard Court initially They simply applied unable to enunciate. have four-justice plurality opin standard set forth in Bandemer’s four-justice might thought prove ion. This plurality has met the test of time—but for the fact standard invariably produced application the same that its has almost fees) attorney’s (except incurring of as would result for the nonjusticiable: question Judicial have obtained if the were commentary put has intervention has been As one refused. history, “[throughout subsequent has it, Bandemer its litigation exclusively with served almost an invitation as prospect Karlan, Issacharoff, & out much P. of redress.” S. 2002). (rev. Democracy R. The Law 2d ed. Pildes, of 886 (and merely provided prelimi one in which was case relief that) nary drawing of district relief, did not involve the involving that most lines;5 in all of of the cases we are aware 5 Martin, (CA4 Republican Party North Carolina F. v. 980 2d 943 of 12(b)(6) 1992) judg Federal Rule of Civil Procedure (upholding denial of v. North Party North Carolina Republican defendants); ment for of Elections, (CA4 1994) Carolina State Bd. of (unpublished 27 F. 3d 563

280

common form of relief was denied.6 gerrymandering, Moreover, case in which relief although was provided plus the ne ultra of involved seemingly partisan manipula- supra, we be at tion, see n. would a loss to explain why the Bandemer line should have been drawn there, and just should not have embraced several that were districting plans of extreme upheld allegations discrimina- despite partisan modified, a injunction). Martin dealt opinion) (upholding, preliminary system electing with North Carolina’s of superior statewide, court judges system had resulted the election only single Republican 2d, since judge 1900. 980 F. at 948. Later developments in the ease are described in n. infra. 6For in which rejected for relief under Davis v. cases courts prayers Bandemer, e. g., Duckworth v. State Administra (1986), see, S. 478 U. 109 Laws, (CA4 tive Bd. Election Boyle, Smith v. F. 2003); 332 3d 769 (CA7 1998); County La Porte Republican Central F. 3d Comm. v. Porte, Board County Comm’rs La (CA7 Ses 1994); F. 3d 1126 sion Perry, curiam); (ED 2004) (per Martinez F. 2d Tex. Supp. Bush, (SD 2002) v. Supp. (three-judge panel); O’Lear 234 F. 2d 1275 Fla. Miller, (ED Mich.), v. 222 Supp. F. 2d 850 aff’d, summarily 537 U. S. 997 (2002); Marylanders Fair Representation, Schaefer, Inc. v. 849 (Md. 1994) F. Supp. 1022 Slagle, Terrazas v. (three-judge panel); 821 (WD Blue, 1993) F. (three-judge panel); Pope v. Tex. Supp. 1162 809 (WDNC) F. Supp. 392 (three-judge panel), aff’d, summarily 506 U. S. 801 (1992); Illinois Legislative LaPaille, Redistricting Comm’n v. 782 (ND Fund Accurate and 1992); Represen Supp. F. 1272 Ill. Informed tation, Inc. Weprin, (NDNY) v. 796 F. Supp. 662 (three-judge panel), sum Hechler, Holloway v. aff’d, (1992); 506 marily U. S. 1017 817 F. Supp. 617 (SD 1992) W. (three-judge aff’d, Va. panel), summarily (1993); 507 U. S. 956 Elections, Hastert v. State Bd. (ND 777 1991) (three- F. Supp. 634 Ill. of judge panel); Anne Arundel County Republican Central Comm. v. State Laws, Administrative Bd. (Md. 1991) Election (three- 781 F. 394 Supp. aff’d, Republican Party of (1992); judge panel), summarily 504 U. S. 938 Wilder, (WD Virginia v. 1991) 774 F. 400 Va. Supp. (three-judge panel); Eu, (ND Badham v. 664, 1988), 694 F. Supp. aff’d, 670 Cal. summarily (1989); In Legislative re 2003 Apportionment House 488 U. S. 1024 Representatives, 2003 A. 2d McClure v. Secretary Com 81, 827 810; ME monwealth, Legislative Redistrict 614, (2002); 436 N. Mass. 766 E. 2d 847 Cases, ing Kenai Borough (1993); Peninsula 629 A. 331 Md. 2d 646 v. State, 743 P. 2d 1352 (Alaska 1987). tion, districts, and bizarrely results. shaped disproportionate g., Perry, e. Session v. (ED See, 298 F. 2d 451 Tex. Supp. curiam); (per v. Miller, 2004) O’Lear 2d 850 F. Supp. (ED Mich.), aff’d, 537 U. S. 997 (2002); Badham summarily Eu, (ND 694 F. Cal. Supp. 1988), aff’d, summarily (1989). U. S. To think that this lower court juris- has forth prudence brought discernible and man- “judicially standards” would be ageable fantasy. effort

Eighteen years judicial virtually nothing show for it inus justify revisiting whether question Bandemer standard promised exists. by As the following reveals, discussion no judicially discernible and manageable standards for adjudicating political claims gerrymandering have them, we emerged. must Lacking conclude that politi- cal Ban- claims gerrymandering nonjusticiable demer was wrongly decided.

A We our review of begin standards with that possible pro- Bandemer be- by Justice White’s posed plurality opinion cause, as the narrowest for our decision in case, ground it has been the standard the lower employed by courts. The concluded that a plurality claim political gerrymandering could succeed where showed “both only plaintiffs intentional discrimination an identifiable against and an political group actual effect on that 478 U. discriminatory group.” 127. As to the element, intent the plurality acknowledged done “[a]s long redistricting legislature, should not be difficult to very prove likely political Id., were the intended.” consequences reapportionment at 129. the effects was However, harder prong significantly to Relief could not be based the satisfy. merely fact upon that a banded group persons together political pur- had to poses failed achieve representation commensurate with its numbers, or scheme the made apportionment Id., at its of elections more difficult. 132. winning Rather, that, be shown into it would have to account a taking variety and election results, of historic factors projected group chance to had been “denied its influence the effectively politi- whole, which could be cal as a achieved even with- process” Id., at out It candidate. 132-133. would not be electing establish, to that Democrats had been enough example, in a district with of other Demo- “placed supermajority the district cratic voters” or that from “departs pre-existing Id., at Rather, boundaries.” 140-141. in a chal- to an individual district would “on lenge focus inquiry of the of members opportunity group participate deliberations in the and nomination of party slating candi- dates, their vote, and and their opportunity register hence chance to influence the election returns and to se- directly Id., cure the attention of candidate.” winning 133. A statewide contrast, would involve an challenge, by analysis of “the voters’ direct or indirect influence on the elections Ibid, added). state a whole.” legislature (emphasis what With has to be a understatement, proved gross plu- this was “of rality a difficult in- acknowledged necessity Id., at 143. quiry.” Bandemer

In her concurrence, pre- Justice O’Connor dicted that standard “will over time either plurality’s evolve else towards prove unmanageable arbitrary Id., some loose form of at 155 proportionality.” (opinion J.,C. judgment, concurring joined Burger, J.). A similar prediction Rehnquist, unmanageability was Justice Powell’s it the expressed opinion, making id., aof of the Court. at 171 prognostication majority (“The basic . . . most flaw in the is its plurality’s opinion failure enunciate standard that affords any guidance courts”). That has legislatures been prognostication fulfilled. amply

. In the courts, lower test legacy plurality’s g., e. one record of See, and consternation. long puzzlement supra, Session, this case we have borne (“Throughout

283 Ban- to the forces nurtured conflicting witness by powerful, demer’s the is to that address judiciary ‘excessive’ holding while the issue unen- line-drawing, leaving virtually partisan I, 188 Vieth F. forceable”); 2d, at 544 Supp. (noting Bandemer standard enunciated “recondite offers little con- v. Bush, Martinez crete 234 2d 1275, F. guidance”); Supp. (SD 2002) court) (Jordan, J., Fla. (three-judge 1352 concur- (the continue to “lower courts in an ring) struggle attempt and effect’ interpret apply ‘discriminatory prong [Bandemer] supra, O’Lear, standard”); at 855 (describing Bandemer’s standard effect as assessing discriminatory The test has been in- “somewhat criticized for its murky”). g., e. host of academic See, commentators. determinacy by (2d Tribe, § L. American Constitutional Law 13-9, 1083 ed. p. 1988) (“Neither Justice White’s nor Justice Powell’s approach to the real question partisan apportionment gives any to lower courts forced to this guidance issue...”); adjudicate Still, 1019, 38 UCLA L. Rev. Hunting Gerrymander, (1991) 1020 has “con- (noting plurality opinion founded alike”); and academics legislators, practitioners, Schuck, The Thickest Thicket: Partisan and Gerrymandering Judicial Politics, 87 L. Regulation 1325, Colum. Rev. (1987) the Bandemer standard re- (noting plurality’s that are quires judgments “largely subjective ques- beg tions that lie at the heart of in democ- political competition Issacharoff, Politics: The Elusive racy”); Quest Judging Judicial Review Fairness, of Political 71 Texas L. Rev. (“Bandemer confusion”); An Grofman, begot only Witness Expert on Perspective Continuing Emerging Controversies, Stetson L. Rev. Voting Rights (1992) (“[A]s far I as I am am one of aware two only people Bandemer who believe Moreover, makes sense.

other Lowenstein, has a Daniel person, diametrically op- means”). what view as to Be- posed opinion plurality cause this standard when has was misguided proposed, been not even de- improved subsequent application, today appellants, us

fended before we decline to affirm requirement. it as a constitutional

B Appellants enunciating take a run at their own workable Equal I, §2, standard based on Article and the Protection only length We consider it at Clause. reflects because it litigant’s view as to the best that can be from 18 derived years experience, many of but also because shares features proposed may standards, with other so that what is said of it Appellants’ proposed as be said of them well. standard re- two-pronged plural- tains the framework of the Bandemer ity plus type showing effect—but modifies the of suf- —intent satisfy ficient to each. satisfy appellants’ plaintiff

To intent standard, a must mapmakers predominant “show that the acted with a intent partisan advantage,” “by to achieve which can shown di- rect evidence or circumstantial evidence that other neu- legitimate redistricting tral and criteria were subordinated goal achieving partisan advantage.” Ap- to the Brief for added). pellants (emphasis compared As with the Bande- plurality’s disadvantage plain- test intent to mer of mere proposal group, seemingly tiff’s this makes the standard only expense making more difficult to meet—but the standard more indeterminate. disadvantage plaintiff’s politi

“Predominant intent” group importance goal cal refers to the relative of that as goals compared map pur other with all the that the seeks contiguity compactness districts, districts, observ sue— protection subdivision, ance of the lines of of incum parties, bents of all cohesion natural racial and ethnic requirements neighborhoods, compliance Voting Rights regarding Appel distribution, Act of 1965 racial etc. test lants contend that their intent must be discernible manageable borrowed because it has been from our racial gerrymandering v. Johnson, Miller cases. See U. S. 900 Reno, Shaw v. (1995); (1993). 509 U. S. 630 with, To begin in a is not very so. In the racial important respect context, intent test has gerrymandering predominant been to the district in which the applied challenged plaintiffs supra; Hays, Miller, United States voted. See 515 U. S. (1995). Here, however, do not assert that an appellants fails their intent test if apportionment district any single so. Since does “it would be to bar state quixotic attempt from redraw district legislatures considering politics they lines,” Brief test Appellants appellants propose is satisfied when only “partisan was the advantage predomi- plan,” behind the entire id., statewide nant motivation at 32 added). as the (emphasis Vague motivation” “predominant test be when used to evaluate might districts, it all single but when statewide. evaporates mean, Does applied instance, intent must partisan all other outweigh of goals contiguity, compactness, preservation neighbor- — hoods, etc.—statewide? And how is the statewide “out- to be If determined? weighing” three-fifths of the map’s districts of ends in favor of forgo pursuit partisan strictly lines, and observing political-subdivision two-fifths only ig- nore lines to those is the disadvantage observ- plaintiffs, ance subdivisions of be- political “predominant” goal tween are sure those two? We do not think so. appellants

Even narrower within the of to a sin- compass challenges to racial a intent” gle district, test “predominant applying is less easier and The Constitu- gerrymandering disruptive. tion entities, see clearly districting by contemplates political Article turns I, 4,§ and out be root- unsurprisingly supra, Miller, of and-branch a matter at 914 politics. will in most cases calcu- implicate (“[R]edistrieting political lus in various .”); which interests .. compete recognition supra, Shaw, J., (White, at 662 in- dissenting) (“[Districting is of interest .”); . evitably . expression group politics Gaffney Cummings, (1973) (“The S. U. reality is that has and is intended to have sub- inevitably districting By consequences”). purpose contrast, the

stantial the basis of segregating on race not a voters lawful rarely Determining more encountered. is much one, and shape particular substantially district is of a so whether by presence constitutionally a rare affected sus- quite it is pect as invalidate different from motive deter- substantially mining so affected whether it is the excess ordinary motive to invalidate of an and lawful it. More- districting partisan is a fact lawful and over, the com- always practice that there almost mon room for means an contending election-impeding partisan lawsuit advan- tage predominant motivation; was the not so for claims of Finally, might justified gerrymandering. courts racial degree unmanageability accepting a modest to enforce a (like which constitutional command the Fourteenth Amend- discrimination) obligation from racial ment to refrain is clear; they justified inferring judicially en- whereas are not (the obligation obligation forceable constitutional not to partisanship apply districting) too much which is both du- unmanageable. severely reasons, bious and For these gerrymandering represent that our extent racial cases manageable they provide standards, model of discernible and no comfort here. prong appellants’ proposal replaces effects the Ban- plurality’s vague chance to effec-

demer test “denied its tively political process,” 132-133, influence the requi- seemingly specific. criteria that are more The. “(1) plaintiffs is show that site effect established when the par- ‘pack’ rival systematically the the districts and ‘crack’ ‘totality ty’s the voters,7 and of the court’s examination plain- map the confirms the thwart of circumstances’ can ability majority majority a into tiffs’ to translate a of votes 7 a supermajor a refers to the of “Packing” practice filling district of a group a the given group splitting of or involves ity party. “Cracking” a majority or among party several party deny group districts of those districts. any

287 (emphasis 20 and Appellants footnote for seats.” Brief of added). § applying loosely on our cases 2 based is This test § 42 1965, U. dis- 1973, S. C. Voting Rights Act of of Grandy, g., Johnson v. De 512 by e. race, see, crimination (1994). politics rarely readily is person’s as But a 997 U. S. permanently discernible —as a never as discernible—and an immutable char- person’s affiliation Political race. next; election to the may one acteristic, shift from but party not all voters follow the given election, even within a (and political party hope) which say We dare line. utterly incompetent candidate will puts forward lose even an impossi- registration stronghold. These facts make it in its partisan gerrymandering, to fash- assess the effects of ble to evaluating finally violation, and to craft a a ion standard (O’Connor, remedy. supra, Bandemer, J., at 156 con- a judgment).8 curring in partisan gerryman-

Assuming, the effects of however, that dering appellants’ invalidate determined, test would can be districting only prevents majority of the elec- when majority electing representatives. of Before from torate judicially considering particular whether this standard is one case we A delicious illustration this have found —alluded Bandemer. See n. In Re 5, supra. relief provided above —that under Hunt, 94-2410, WL Party North Carolina No. publican curiam) 1996) at (per (CA4, 12, (unpublished), judgt. reported Feb. order Court, stipula after a trial with no than 311 77 F. 3d the District less exhibits, statements, approximately tions 132 witness by parties, system that North Carolina’s argument, of oral concluded days Re on basis “had judges court a statewide resulted electing superior suc pervasive a consistent and lack experiencing candidates publican these a whole and that from the electoral process cess exclusion 1996 WL to continue unabated into the future.” likely were effects days just elections for conducted superior judges *1. In the court at five “every standing candidate Republican this pronouncement, after ibid., level,” judge court at the state was victorious superior office reason) (with “directly the Fourth Circuit good result which thought id., *2, causing court,” prediction the recent district odds with case for it to reconsideration. remand judicially question

manageable whether it is discernible we constitutional being relevant to some viola- in the sense (and do), appellants may Deny this standard rests it as tion. (or political-action groups at least upon principle that representation. right proportional groups) But have guarantees principle. It no such contains the Constitution equal persons, representa- not equal protection of the law to equivalently groups. sized no- government It tion dwellers, or urban fun- says farmers Christian where Republicans Democrats, or Jews, must damentalists proportionate political strength to their numbers.9 accorded judi- relevant, however, it is if the standard were Even begin party’s majority cially with, is a manageable. To how Appellants propose using the re- status to be established? party support. as the benchmark of sults of statewide races complaint Pennsylva- describes, in the But their own Republicans elections won and nia statewide some some (describ- Statement 137a-138a See Juris. Democrats won. ing received more Pres- how Democratic candidates votes for Republicans general, and more ident and auditor received attorney general, Senator, treas- for United States votes urer). majority to think that status in statewide Moreover, majority status for district one contests, races establishes only determining that the factor vot- to believe would have ing affiliation. That is as- all levels is behavior at suredly put review As one law comment has it: not true. appellants’ share alarm at asserted also does not The Constitution create more partisan gerrymandering representa tendency partisan true, to be not an Assuming assertion Constitution does tives. for Democratic their it is better to have whether voters question swer the (be 10 wishy-washy include Democrats delegation congressional State’s distributed so “effectively” are as to constitute Democratic voters cause (because districts), hardcore Dem or 5 Democrats many majorities bare districts). in few former packed Choosing tightly ocratic voters Democrat; choosing the radical latter does the vote of “dilutes” I, §2, nor the Article Protection Equal Neither same to the moderate. dispute. sides in this Clause takes

“There in this no statewide vote for House country Rather, or the state Representatives legislature. there elections candi- between separate separate in districts, dates and that is all there is. separate If districts their candidates change, change, and weaknesses their strengths campaigns change, their to raise the issues change, ability money changes, Political do not change everything changes. parties — for the or the statewide vote totals compete highest mean district vote highest percentages: They compete & for seats.” Lowenstein The specific Steinberg, Quest for in the Elu- Legislative Public Interest: Districting (1985). sive 33 L. UCLA Rev. 59-60 Illusory, Schuck, See also Partisan A Political Prob- Gerrymandering: lem Solution, Without Judicial in Political Gerrymandering (B. 1990). 241 Courts Grofman ed.

But if we could a we would find it identify majority party, to ensure that wins a impossible party majority seats —-unless we revise the States’ traditional radically elections. In structure for winner-take-all any district sys- tem, there can be no no matter how the district guarantee, drawn, lines are that a votes majority statewide party will of seats for that produce majority party. point elections in the 2000 proved by congressional Pennsylvania, own which, were con- according appellants’ pleadings, district drawn “free ducted under from map judicially par- tisan Juris. Statement 137a. On this gerrymandering.” fiel[d],” the Democrats’ statewide “neutral playing majority (50.6%) vote translated into a minority major-party Id., seats 11 for the (10, 133a, versus Republicans). 137a. or not, Whether reason of con- districting by partisan party in some stituents wind districts “packed” may always up Dixon, others. “cracked” R. Democratic throughout (“All Is Districting ‘Gerrymander- Representation Rev., L. at 1359. Consider, 87 Colum. Schuck, ing’”); that draws district lines with no ob- example, legislature in compactness mind except respect jectives Under that subdivisions. system, lines of political (as is the cluster case with tend Democratic groups cities) be in affected systematically voters would what effect. See Bandemer, called a “natural” packing might J., at 159 concurring judgment). (O’Connor, Reynolds Sims, cases, see one-vote v. Our one-person, Wesberry Sanders, (1964); U. S. 1 (1964), U. S. 533 have neither no this nor in question, principle bearing upon because to Not each indi- say practicality. principle, in the an vidual must have selection of equal say representa- tives, and hence that a individuals a must have majority that each is not at all to discernible say say, majority group, whether or urban dwellers farmers must political parties, to have its numbers. And not representation equivalent because the administrable standard of easily practicality, Wesberry Reynolds and en- by population equality adopted (and a ables to decide whether violation has occurred judges it) to basis on the of three deter- remedy essentially readily lives, mined factors —where the how voters plaintiff many his how district, are in and voters are in other dis- many a tricts; whereas decide whether district- requiring judges will a statewide for a ing system produce majority majority casts them forth a sea of and asks party imponderables, upon them to make determinations even election experts can agree upon. reasons,

For these we find standards proposed appellants’ nor neither discernible manageable.

C For the standard reasons, we also same many reject Powell in Bandemer. Justice He suggested agreed effect, that a show intent should plaintiff plurality on to focus but believed that ultimate inquiry ought whether district drawn boundaries had been parti- solely san ends the exclusion “all other neutral factors rele- to the fairness vant at 161 redistricting.” (opin- id., see ion also concurring dissenting part part); 164-165. Under courts should consider inquiry, factors, numerous one factor though “[n]o should disposi- Id., tive.” 173. most would be “the important districts and adherence voting to established shapes politi- Ibid. cal subdivision boundaries.” “Other relevant consid- erations include the nature of the legislative procedures by was which law apportionment adopted legislative Ibid. history reflecting contemporaneous legislative goals.” factors, These which “bear on the fairness of a redis- directly combined with plan,” “evidence tricting concerning popula- tion and statistics dilution,” show vote disparities tending make out claim of unconstitutional partisan gerrymander- Ibid. ing. criticized the Bandemer

While Justice Powell rightly plu- based, rality suggest failing constitutionally judi- standard, the standard in his cially manageable proposed also of the mark. It falls short opinion essentially all where conceivable analysis, totality-of-the-eircumstances none of factors, which with an dispositive, eye weighed to whether has ascertaining particular gerrymander or, too in Justice Powell’s whether it gone terminology, far — is not not “fair.” “Fairness” does seem us a to judicially is with noncon- standard. Fairness manageable compatible it is districts that straddle tiguous districts, compatible it subdivisions, and with a not compatible party’s of of seats that number mirrors the winning proportion its solid vote. Some criterion more demonstrably more met to us to than that seems enable the state legis- necessary discretion, latures to to discern the limits districting their to courts, the discretion of the constrain meaningfully win for the courts’ into a intrusion public acceptance process that is the democratic foundation decisionmaking. very

IV proposed next consideration We turn to standards today’s preface it dissenters. We with the observation four up the mere fact that these dissenters come with that different them three standards —all different from two proposed by appel- proposed in Bandemer and the one here way establishing goes long no that there is consti- lants — tutionally discernible standard.

A in the Justice Stevens concurs that we should judgment address statewide plaintiffs’ political gerrymandering he reaches that result via challenges. Though standing post, at 327,328 while we (dissenting reach analysis, opinion), our conclusions are the through analysis, political-question these statewide claims are nonjusticiable. same: require however, would, courts to con- Justice Stevens challenges political gerrymandering sider the individual- district level. Much of his dissent addressed to the incom- partisan gerrymanders patibility of severe with democratic disagree principles. judgment, any We do not with that disagree judgment with the we that it would be more than employ, impeachment Senate unconstitutional procedures incompatible proceedings, with its obli- “try” impeachments. gation States, See Nixon v. United (1993). The issue we is not 506 U. S. have discussed gerrymanders partisan violate the Constitu- whether severe say for the courts a violation but whether it is when tion, remedy. point, design occurred, has and to On Jus- helpful, saying, essentially, is less dissent tice Stevens’s gerrymandering do the racial context we if we can it in it here. can do supra, many reasons examined, 285-288,

We have Only challenged by why a few them are is not so. assum[e] says “mistakenly that we He Stevens. Justice making politi- provide legitimate basis for that race cannot say Post, at 338. But race- judgments.” we do not cal decisionmaking always is unlawful. Race can be conscious example, purpose as an indicator to achieve used, for districting. in neighborhood cohesiveness What we have impermissible purpose segregating is “the is voters said supra, say, race,” basis of at 286—that is to racial on the gerrymandering equiva- sake, for race’s which would be the political gerrymandering politics’ lent of sake. Justice “er[r] says assuming politics in we is ‘an ordi- Stevens ” nary districting, post, motive’ and lawful 324—but all brings argument forward to contest that is the that an he injection politics and so is, excessive unlawful. So opinion reality does our assume. That does not alter the setting segregate by out to voters race is unlawful and segregate by setting to rare, hence out them (so far) long go one doesn’t too affiliation lawful and ordinary. hence confidence that what courts have done

Justice Stevens’s gerrymandering political gerry- with racial can be done with mandering part upon his rests belief that “the same stand- apply,” post, But in fact the ards should at 335. standards quite purpose are A to discriminate on the basis different. scrutiny Equal Pro- race receives the strictest under purpose Clause, tection while a similar to discriminate on “[N]othing politics law does not. in our case the basis of political gerrymanders compels racial and the conclusion that scrutiny. subject precisely In constitutional same dis- country’s long persistent history racial fact, our voting as our Fourteenth Amend- crimination in well —as jurisprudence, always has the strictest ment which reserved scrutiny seem on the basis of race—would discrimination at 650 compel opposite Shaw, conclusion.” (citation omitted). quoted passage re- in direct That was (and of) sponse suggestion rejection made Jus- gerry- racial that “a White and Stevens dissent tices functionally equivalent alleged here is of the sort mander gerrymanders purposes, political gerry- nonracial for such as Vera, 952, See also Bush v. manders.” Ibid. U. S. (“We opinion) (plurality subjected political have not scrutiny”). gerrymandering to strict relies on First Amendment cases Justice Stevens discriminatory suggest politically gerrymanders that are scrutiny subject Equal to strict under Protection post, elementary It is at 324-325. that scru- Clause. specific. tiny triggers are claim An action a levels that scrutiny may heightened very level of for one claim receive a scrutiny different level of for a different claim because the underlying rights, consequently harms, constitutional say comparable. suppression political are To that not (a violation) speech triggers Amendment claimed First strict say give scrutiny political groups is not to that failure to (a violation) equal representation equal protection claimed scrutiny. triggers Only equal protection an strict claim is very present perhaps good before us for the case— a claim, sustained, reason that First Amendment if it were political render all consideration of would unlawful affiliation districting, just as it renders unlawful all consideration of hiring non-policy-level political government affiliation in jobs. Burns, such as Elrod v. What cases S. 347 (1976), merely Republicans require given is not be jobs in a Democratic bút administration, decent share disregarded. affiliation scrutiny Having polit- failed to make the case strict gerrymandering, falls on ical back Justice Stevens scrutiny simply pur- argument do not levels matter for poses justiciability. imposing asserts that standard He (strict invalidity scrutiny) strong presumption of is no more manageable requiring than a standard an discernible and balancing of all considerations with no on evenhanded thumb (ordinary scrutiny). To state this is to the scales refute it. readily, scrutiny always, As and almost known, is well strict there Moreover, mere fact that results in invalidation. which this Court standards could apply proposi- exist —the which Stevens’s devoted to much Justice tion opinion not see, 321-327, e. 340-341 —does establishing, post, g., those standards discernible in Constitu- mean This tion. Court standards —even willy-nilly may apply no relation having to constitutional manageable standards — out, Justice Stevens see at n. harms. points post, between that Bandemer said differences racial and political be relevant to the manner in which case “may groups but these differences do not a refusal to adjudicated, justify such a at entertain case.” 478 U. 125. As 18 have years shown, Bandemer was wrong.

B Souter, Justice like Justice restrict Stevens, would us, these on the before to district- plaintiffs, allegations Post, claims. at specific political gerrymandering Stevens, however, Unlike Justice (dissenting opinion). no work- there is Justice Souter existing recognizes such claims. He able standard for adjudicating proposes start,” at 345: a constructed standard “fresh post, newly cases, in form on our Title VII see McDonnell based loosely Green, (1973), and U. S. complete Douglas Corp. sewn from with a facie test parts five-step prima together Act of, other our things, Voting Rights jurisprudence, among articles, cases. Even if these law review apportionment to could manage- “clues” self-styled unconstitutionality to doubt, there is no reason think which we ably applied, crime which Justice detect constitutional would they of unfairness” Souter is investigating “extremity —an Post, at 344. partisan competition. in order to standard,

Under Souter’s proposed Justice (1) that must show district, a plaintiff challenge particular (2) “that he of a is a member “cohesive political group”; to tradi- . . little or no heed” district residence . of his paid (3) cor- that there were tional “specific districting principles; the district’s deviations from relations between traditional and the distribution of the districting principles population (4) that a district exists of his which hypothetical group”; residence, remedies or includes the plaintiff’s packing and deviates less from tra- group, cracking plaintiff’s that “the defendants ditional districting principles; acted the district intentionally manipulate shape Post, crack his or 347-350. When pack group.” order made, been those have burden would shift showings the defendants to district reference to justify “by objec- Post, tives other than naked 351. partisan advantage.” test seems scientific, While this five-part eminently upon one finds each the last four analysis steps requires and ill to the suited judgment unguided quantifying standards: How much development judicial disregard traditional How correlations districting principles? many between deviations and distribution? How much remedy- district? cracking ing packing hypothetical How have had the intent must many legislators pack (must crack —and how must that intent have been efficacious non been, it have a sine cause of the dis- qua example, cause)? two, or a At exam- predominant step tricting, lower courts to Souter would assess require ple, Justice or no whether “little heed to traditional ... paid mapmakers Post, 348. What is a lower court districting principles.” case, often to when, to do as will be district adheres criteria but not others? some traditional Justice Souter’s is to neces- to this evade it: “It is not only question response how a district court would balance now to sary say exactly on one indices show- of these a poor good showing against case of detail best worked another, on for that sort is out ing But the devil Post, case.” at 348-349. lurks by precisely is when in such detail. The central problem determining solve has too far. It does not gone gerrymandering political to down the unanswerable break original ques- problem .that much?) (How much and effect is too motivation tion political unanswerable four more discrete but into equally questions. is doomed to for a more failure proposal Souter’s Justice reason: No not even a test —can five-part basic yea, test — one what he is successful unless knows testing possibly context, In the the test present ought identify depri- for. of that minimal or influence vation degree representation which a is As we entitled. political group constitutionally seen, have Bandemer test but at sought (unhelpfully, what that was: least minimal “[a] gamely) degree specify chance influence effectively political process.” S., at 133. So did the test: “[the] appellants’ proposed to translate of votes into a ability majority majority Brief for 20. avoids seats.” Appellants Justice Souter of those us what the difficulties formulations never telling test than the “ex- for, his other utterly looking unhelpful unfairness.” He the harm he describes vaguely tremity which dilution, as vote a term is concerned with post, on of a vote. some actual effect the weight usually implies to the But no of his test looks effect of element gerry- success, electoral the electoral mander on the opportunity, do influence, We even the plaintiff’s group. his test not know the constitutional precise deprivation to identify prevent. designed believes

Even if it is (though implausible) Justice Souter “vote consists the constitutional merely deprivation that effect. test would not even dilution,” identify his on the McDonnell claimed reliance Douglas his Despite no would allow framework, op- plaintiff Souter Justice tra- that the to show mapmakers’ compliance portunity His reason for factors is ditional districting pretextual.10 State, de proving its affirmative would allow Justice Souter “were shape for the district’s fense, given that the reasons to demonstrate Post, at gerrymander.” for an old-fashioned more than mere pretext affirmative does not arise 852. establish that defense But need to cannot adherence stated, never but it certainly this is of any factors negates possibility to traditional districting above, have explained dilution. As we intentional vote no, are whether intentional quite and cracking, packing and with adherence to compactness respect consistent supra, lines. 289-290. An even subdivision See political is traditional criterion incumbency better example has previously protection. acknowledged Justice Souter to be a traditional district- constitutionally acceptable Vera, S., at 517 U. 1047-1048 ing principle. (dissenting so, his Since that is test would those opinion). protect so, who are often ensure the reelection packed, tightly Indeed, of either efforts to maxi- representatives party. mize statewide well partisan representation begin might with voters of the into the districts packing opposing party incumbents of that this means in- an existing party. By cumbent protected, potential adversary districting mollified, and votes are diluted. party opposing us,

Like acknowledges accepts Justice Souter “some intent when- gain political advantage inescapable ever bodies devise a district and some effect plan, Post, from Thus, results the intent.” us, 344. like again he that “the issue is one of how recognizes much is too Ibid. And once those conceded, much.” premises that can based, line be drawn must be only as Justice Sou- admits, a substantive again candidly upon “notio[n] ter Ibid. This is the same fairness.” flabby goal deprived Justice Powell’s test of sure, all To be determinacy. Justice frames it somewhat must Courts inter- differently: Souter vene, he when has reached an says, competition “partisan Ibid, extremity added). of unfairness.” doWe (emphasis not think the is solved the modifier. problem by adding until plaintiff has prima prima established his facie case. And that when, two, facie step case fails under the district on its face complies traditional districting criteria.

c agree with much Breyer’s dissenting opin- We of Justice which convincingly “political ion, demonstrates that consid- likely play important, will an erations proper, role in the drawing of district places Post, boundaries.” at This 358. like the other dissenters, in the difficult Breyer, Justice position drawing good politics line between and bad politics. them, Unlike he would problem tackle this at the statewide level. Breyer proposes

The criterion Justice nothing is more precise unjustified than “the use of to factors en- minority power.” trench a Post, (emphasis origi- at 360 nal). passing While he Equal invokes Protection any Clause, it be should clear to reader that what constitutes unjustified depends entrenchment theory on his own of “ef- government.” fective at Post, agree 356. While one must Breyer’s incredibly starting point abstract Justice sought that our Constitution “basically create a demo- government, ibid., cratic” form of long impass- that is a away able Judiciary distance from the conclusion that the (somehow defined) may group assess whether a has achieved (somehow defined) political power a level of commensurate they unjustified with that to which would entitled absent (whatever means). political machinations provides guidance Breyer jour- no real for the Justice ney. Despite promise so, ibid., to do his he never tells us beyond testing what he unhelpful “unjustified for, en- “set[s] Post, trenchment.” Instead, at 360. he forth several lay sets of out circumstances the indicia of abuse,” “along post, proceeding (presumably) a continuum,” clearly from possibly unconstitutional uncon- most regard willing “scenario,” to the first stitutional. With he is support assert indicia “would be sufficient to that the refreshingly categorical, Post, claim.” This 366. seems merely until one realizes the indicia consist receiving majority acquire failure of of votes party elections, in two successive but also majority of seats phe- explanation for this no “neutral” the fact that there always is a neutral But of course there Ibid. nomenon. only criterion incumbent explanation the time-honored —if Breyer’s sec- protection. set forth in The indicia Justice up gerry- unconstitutional also add to ond “could scenario ibid, added); (emphasis mandering,” and in the for those map may that the crosses consti- “a court conclude the third added). (emphasis post, We none find at line,” tutional helpful. at from one of scenario suffers least Each this notably problems previously most the identified, have we assessing partisan strength statewide and of difficulties ascertaining plan an entire statewide is motivated whether justifications, by political supra, 285-286, at neutral see two do And even at scenarios not that, 289-290. last purport provide presumably leaving it answer, even to an to whether, under each determine those cir- district court to “unjustified cumstances, entrenchment” has In occurred. Breyer precisely sum, we neither know what Justice testing precisely fails the for, nor what test. perhaps surprising

But the most omission from Justice Breyer’s given matters, is dissent, his views on other Breyer any analysis. absence of cost-benefit ac- Justice knowledges normally majority “a can work that its post, will,” actors, well the number of at describes redistricting officers, from commis- statewide executive to Congress, People in sions, to the ballot initiatives ref- post, ready happen. erenda, that make stand none) (and gives we know 362-363. He no instance permanent majority But the ma- frustration of will. where pe- jority has for some failed itself indeterminate assert (two first riod if his elections, we to believe successive scenario), Breyer simply “court ac- assumes that Justice Why may prove necessary,” post, In the tion at 364. so? world, real that is tends to court action available course, necessary, sought, just it is but where where it vaguer seeking party. the test the interest of the And the more interest rather than ne- frequently availability, Is will insertion of cessity produce regular litigation. with the into districting, judiciary delay uncertainty and the to the brings political process partisan enmity worth the courts, benefit to be achieved— brings upon accelerated some unknown effectuation an of the (by degree) think not. will? We majority

V Kennedy that we have “demon- recognizes Justice other strated] standards have shortcomings date,” been considered post, (opinion concurring we moreover, He “lack . . . judgment). acknowledges, and neutral electoral comprehensive principles drawing at boundaries,” and that an 306-307; there is “absence post, intervention,” of rules to and confine limit judicial post, 307. From these one think that Justice premises, might Kennedy would reach the that conclusion political gerry- claims Instead, however, he mandering nonjusticiable. concludes that courts should continue to such adjudicate claims because a standard one day discovered. may (cid:127) Kennedy’s The first to be said about Justice dis- thing that is not is it available. The Court District position legally in this case considered the claims plaintiffs’ justiciable but dismissed them because the unconstitu- standard for had not been met. It to tionality impossible logically (1) affirm that dismissal without either that finding standard the District unconstitutional-districting applied by Court, or some other standard that have should applied, (as met, have) or has been the claim we finding Kennedy to affirm seeks nonjusticiable. “[b]e- Justice cause, Post, in the case have no us, before we standard.” at 313. our But it is not the to job, plaintiffs’, explicate makes ade- standard that the facts alleged by plaintiffs to a claim. We cannot nonsuit state quate inadequate to failure them for our do so. Kennedy to declare nonjusticiability asserts that

Justice Post, to such a Our rush hold- at 311. incautious. would be “contrasts of fruitless litigation a mere 18 years after ing this the more he “with approach” says, patient starkly” Post, We think not. at 310. in the has taken past. Court fall our what areas come determining beyond it has When this Court’s III authority adjudicate, practice, Article has to the present, from the days Republic earliest than of On July of Hannibal Hamlet. reminiscent been more Thomas Jefferson wrote of State 18, 1793, Secretary of President asking the direction Washington, Justices answer [that] depend whether they “questions might our laws treaties, on the on the construction their solution on the laws of the but nations, land,” of nature and do not circumstances which give cognisance arise “under the country” them to the tribunals Correspondence 1891) (H. 486-487 Johnston ed. Public of John Jay Papers letter invited specifically (emphasis original). of- answer, than categorical less yes-or-no Justices give “from which [the the particular questions fering present strike out such as circum- will themselves any Justices] on.” forbid them to in their pronounce stances might, opinion, 8, 1793, the Justices Id., On responded at 487. August manner, and decidedly “impatient” saying categorical just advisory opinions advisory opinions giving —not but all advisory presum- on questions opinions, particular those Judi- legislation affecting even concerning ably of lines their “[T]he power. separation ciary beyond —was the three between the drawn Constitution departments by Id., at it. 488. The Court of the prevented government” not of all “cautious” course the more “denying] rejected 310, but the intervention,” at door leaving open post, hopes some (on a least advisory opinions at the possibility not would violate the we not sepa- could yet imagine) theory 7 Morgan, In v. U. S. Gilligan ration powers. the National Guard’s shooting filed after Ohio (1973), case students Kent the plaintiffs sought State University, a fed- judicial “initial review and surveillance by continuing court over orders eral training, weaponry, The the matter Court held the suit Guard.” nonjusticiable; alia, inter committed because, was to the branches political is difficult to “it conceive of an area of activity governmental Id., which The in courts have less 10. competence.” did not Court the more “cautious” course adopt letting courts lower their hand at try before military regulating in Nixon v. declared it we Most impossible. recently, joined States, United Court, held Kennedy, Justice a claim that the Senate had certain employed impermis- sible in an was a procedures trying impeachment nonjusticia- ble Our decision was limited to the question. under and did not particular procedures reserve challenge, sometime, possibility somewhere, or the technology wisdom derived from make court chal- experience might to Senate lenge all impeachment right. Kennedy cases Justice only cites defense his are Baker v. Carr Bandemer.

never-say-never approach post, at 310-311. Bandemer no There, cover. provides all of the Justices who concluded that political gerrymander- claims are ing to describe justiciable proceeded what they as the discernible and regarded standard that manageable rendered it lower so. The courts were set in the wandering the Bandemer wilderness not because years majority idea, it a but thought because five Justices could not good standard, agree upon because standard the single turned out not to work. plurality proposed Baker v. Carr: As that, It is true had enough having experience whatever no matters of apportionment any sort, refrained from out the Court there spelling equal (It protection did so a mere two standard. years later in Reynolds Sims, (1964).) But S. the judgment Baker, under review unlike the one under review here, demand the determination did not of a standard. The lower apportionment plain- held the claim had the court in Baker logically possible so it was nonjusticiable, and to dis- tiffs simply by disagreeing nonjusti- with the appeal pose the we observed ciability earlier, As that determination. is justi- lower court has held possible the claim where here, by the facts. unsupported We must either enun- ciable but agree disagree us to that causes ciate the standard beyond else affirm judgment, or claim that merits adjudicate. competence our to “[a] by Kennedy worries that determination

Justice deny hopes of to intervention con- Court all could erode premature much as would a fidence the courts decision it Post, at But is the 310. function of the intervene.” hope. provide relief, not What we courts to think would job is the Court’s refusal to its erode confidence do —an- may nouncing here, well a valid claim we there but yet prepared figure it Moreover, out. are not that course by placing confidence; than the district does more erode help pretending in the when back business afford courts they give political process from none, in fact can it deters affording by genuine was noted con- relief. As a lower court political gerrymandering claim: fronted with Supreme may Vieth, “When the resolves choose Court justicia- question retreat from its decision may guidance ble, or it offer more on the nature required will effect.... We have learned firsthand what Throughout if the Court chooses to do neither. result powerful, con- witness to the this case we have borne holding flicting that the forces nurtured Bandemer’s line-drawing, judiciary partisan is to address ‘excessive’ leaving virtually Inevi- while the issue unenforceable. tably, political party power lines uses district as the power present party advantage, out of to lock in its Voting attempts protective to stretch cover Rights urging standards Act, dilution of critical but may, accepted, short-run party if in the aid their the to the detriment of now work persons protected by that in the the both Act long-run. Casting appearance is a and that stands there ready wrong judiciary Bandemer on remedy, applied steps legislative Session, incentives for self-correction.” 298 F. Supp. 2d, at 474. Kennedy’s

But the conclusive refutation of Justice posi- first is the we made: is not an available tion point disposi- can tion. We affirm because political districting presents or we can affirm because we believe question; nonjusticiable which identifies unconstitutional the correct standard politi- been we met; has not cannot affirm because cal districting do not know what the correct standard is. Reduced we Kennedy’s to this: essence, boils down its opinion Justice advised, I know of no discernible and “As manage- presently I am able standard that can render this claim justiciable. that I will be able to that, about and change hope unhappy are the courts to future.” What lower my opinion must We that make of this they suggest pronouncement? dis- treat it as a reluctant fifth vote against justiciability in some trict and statewide levels —a vote that may change this mat- for the time holds, future case but being, ter is nonjusticiable.

VI § Pro- I, 2, nor the We conclude that neither Article Equal invoke) (what Clause, tection nor only fleetingly appellants limit on enforceable I, 4,§ Article a judicially provides may considerations States Congress take into account when districting.

Considerations of stare decisis us to allow do not compel Bandemer an interpretation That case involved stand. decisis are stare at their Constitution, the claims cannot be corrected our mistakes weakest where field, Payne Tennessee, 808, 828 S.U. Congress. in Bandemer ma- because the (1991). weak are They doubly to enunciate inability discernible jority’s judicially (or standard that it existed did not think thought manageable exist) need for did not reconsideration in presaged light And are weak be- experience. they triply subsequent hard to how cause it is action any taken reliance imagine Bandemer could conceivably upon except frustrated — lawsuits, is not the which sort of conduct bringing primary that is relevant. do

While we overturn one of own our lightly holdings, “when decisions are unworkable rea governing badly soned, Court never felt ‘this has constrained to follow prece ” Allwright, Smith 501 U. at 827 dent.’ (quoting v. (1944)). U. S. Eighteen years essentially point us that Bandemer is less have litigation persuaded incapable We would application. therefore overrule that principled case, and decline to these adjudicate political gerrymander claims. ing

The of the District Court is affirmed. judgment

It is so ordered. in the Kennedy, Justice concurring judgment.

A decision correction all election ordering district lines drawn reasons would commit federal and partisan state courts intervention in the American unprecedented is Court correct refrain from di political process. this substantial intrusion into the Nation’s political recting While with the life. agreeing plurality complaint filed in the District Court be dismissed, must appellants d is an caution while great understanding necessary I when this would not all foreclose approaching subject, pos if relief some limited and rationale sibility judicial precise were found to correct an established violation of the Consti cases. tution in some redistricting When with a claim of from injury partisan ger- presented two courts confront obstacles. First is the rymandering, lack of and neutral comprehensive principles drawing No substantive definition of fairness boundaries. electoral to command assent. Second is seems in districting general limit confine intervention. rules to the absence judicial limits, when courts —even intervening uncertain pro- With with best intentions —would risk assuming political, ceeding for a ill that often process responsibility produces legal, and distrust. will can relief in courts cases where race

That grant districting our involved not answer need for does fairness principles Those controversies a different here. implicate inquiry. in the redis- involve classifications They sorting permissible context from ones. is an im- Race tricting impermissible Reno, See Shaw classification. v. 509 U. S. permissible Gaffney (1993). a different Politics matter. quite Cummings, (“It 735, 752 idle, would be we U. S. think, to contend that consideration taken into any political is sufficient to account fashioning reapportionment plan it”). invalidate

A that a violates the law must determination gerrymander more than the conclusion that rest on something a con- were It must rest instead on classifications applied. classifications, that the clusion generally though permissible, invidious in a unrelated were an manner or way applied to any legislative objective. legitimate “fair effective

The is to establish and object districting Reynolds Sims, 377 U. S. for all citizens.” v. representation (1964). could courts 533, 565-568 At first seem that might their own whether determine, the exercise of by judgment, instead to this or classifications are related political object however, The lack, burden any rights. representational makes model of effective fair and agreed upon representation this difficult to analysis pursue. to confine

The second absence of rules judi- obstacle —the there cial to the first. Because intervention —is related in dis- of fairness no substantive yet agreed upon principles clear, which we no basis on to define manage- have tricting, neutral standards for measuring par- able, politically on classification a imposes burden given partisan ticular standards for measuring Suitable rights. representational Ab- critical to our intervention. however, are burden, this results from one sure gerrymandering sent guidance, and inconsistent. would case to the next likely disparate de- have not overcome these obstacles case, we In this violated that challenged districting appellants’ termining a is that fairness The principle appellants propose rights. should be able in the Commonwealth of voters majority dele- of the Commonwealth’s congressional elect majority if the for this Even is no There authority precept. gation. con- were of the accompanied by principle novelty proposed there is no obvious for its way rationale adoption, vincing standard from it for an measuring to draw a satisfactory The on burden rights. plurality alleged representational other standards the shortcomings demonstrates ante, at Parts III and to date. See have been considered in Davis the standards proposed IV (demonstrating Bandemer, (1986), us, before S. 109 by parties or in- are either unmanageable our colleagues dissenting both). I would add com- or two consistent precedent, first is analysis. par- ments to the plurality’s discover, I and have been able us, shown have not ties of fair dis- districting discussions on principles helpful bodies. in the annals legislative cussed parliamentary to statements of princi- been drawn has not Our attention dis- that should of fairness govern rules well-accepted pled, formulations duty legislator’s or to tricting, helpful lines. district drawing seem criteria might promising those

Second, even (e. g., are not alto- compactness) outset contiguity for measur- standards judicial sound as independent gether cannot They prom- rights. on burden representational ing for relief. used as the basis when ise neutrality would these standards under a decision Instead, seems, in- unavoidably significant political effect, whether have that con- example, if we demand not. For were to or tended as- particular shape, we could not districts take a gressional enough on its parties criterion, that this neutral sure political party over an- in one not fact benefit would face, (“District rarely Gaffney, supra, lines are at 753 other. They district phenomena. can well determine what neutral Republi- predominantly predominantly Democratic or will be likely”); The Bork, also R. make a close race see or can, of the Law Tempting of The Political Seduction America: (1990) special (documenting the author’s service as a 88-89 noting redistricting responsible for Connecticut master Party, plan the Democratic albeit his final so benefited unintentionally, personally congrat- party that the chairman him); Mandatory Modeling Altman, M. the Effect ulated Gerrymanders, Compactness Partisan 17 Pol. Ge- on District compactness (explaining ography 989, 1000-1006 help Republicans are more because Democrats standards density regions). high likely in to live finding manageable for assess- standard challenge in The long recog- rights representational has been ing burdens on Legisla- Steinberg, Quest nized. See Lowenstein & Illusory? Districting in the Public Interest: Elusive tive (1985) (“[W]hat us, 1, 74 matters L. Rev. UCLA when district to almost all Americans what we think matters parties and the fortunes of the drawn, lines are is how such When parties stand for are affected. policies po- only neutrality. things is no There there are stake contest”). guidance helpful historical The dearth of litical uncertainty. part, this must, cause holding like arguments cases weighty are, then,

There arguments may prevail nonjusticiable; and those these to be arguments long my view, however, the In run. they require all future compelling now to bar us not so gerrymander. partisan It is injury from a claims of at- from the judicial process to foreclose our tradition standards and remedies it to define where is tempt alleged is burdened or that a denied. it constitutional Nor is right alien to to draw or the election Judiciary district approve all, after do so in Courts, lines. A already many instances. determination the Court to all of intervention deny hopes could erode confidence the courts as much as would pre- to mature decision intervene. to enter of

Our the thicket the willingness appor- tionment to one-vote claims process respect one-person, makes it difficult to refusal justify particularly categorical to entertain claims this other of against type gerrymander- The conclusion that absent an ing. admin- plurality’s “easily standard,” ante, istrable at claim must appellants’ contrasts with the more nonjusticiable starkly patient ap- Carr, of Baker 186 (1962), v. U. S. proach not mention on the controlling precedent question justiciability supra, Bandemer, Davis case would over- plurality ante, rule. See at 305-306.

In Baker made clear that Court the more abstract of all standards Fourteenth Amendment guide analysis claims sufficed to ensure of a justiciability one- one-person, S., vote claim. 369 U. See 226. need the in order to

“Nor succeed this ac- appellants, in. ask to enter tion, the Court upon determinations policy for which standards judicially manageable lacking. Judicial under standards Protection Clause Equal familiar, are well and and it has been developed open since the enactment courts Fourteenth Amend- determine, if on the must, ment to facts particular they no a discrimination reflects but arbi- policy, simply Ibid. action.” trary capricious the more The Court said this before standard with specific which we are now familiar measure the bur- emerged causes den on districting representational nonequipopulous Reynolds, 377 U. 565-568 rights. (concluding representation achieving “[s]ince fair effective concededly legislative appor- is the basic aim of citizens all apportionment legislature’s tionment,” a reliance on other arbitrary, capricious invalid, interests action if leads districts). unequal populations among plurality’s only response that in Baker this Court sat review nonjusticiability holding wide of ante, the mark. See plurality the itself a court at 303-304. As instructs: Before [any] entertaining [a] can conclude that it “has business “judicially claim,” must conclude that some enforceable righ[t]” manageable Ante, is at issue. at 277. Whether a right standard made the at issue in Baker enforceable was necessary inquiry a light as much there as it is In here. of directly Bandemer, Baker and Davis v. which address the question nonjusticiability specific of in the context of district- ing of asserted violations the Fourteenth Amendment, plurality’s survey involving the ap- further of cases different proaches justiciability to the of different claims cannot be thought controlling. ante, at 302-303. putting

Even assuming Baker to the side—and so that measuring gerry- existence of a workable standard for a representational distinguishes rights mander’s burden on one-person, partisan gerrymandering one-vote claims from justiciability purposes reject claims for would still —I plurality’s nonjusticiability. Relying conclusions as to on having having distinction a between a claim work- proof: proof able standard of that sort involves a difficult categorical negative. a is, That the different treatment of hinges entirely proof claims otherwise no so alike on that proposition standard could exist. This is difficult to estab- proving negative lish, challenge any is a in context. emerged That no such standard has in this case should not prove emerge taken to none will future. important rights impossibility Where are full involved, analytical satisfaction is reason err on the side of caution. Allegations apportionment of unconstitutional bias long claims, for we have believed “the

most serious political processes ordinarily right is one of “those vote” upon protect minorities.” United be relied States (1938). Co., 144, 153, S. n. 4 If a Products Carotene passed “All appor- an enactment that declared future State Party be drawn so as most to burden X’s tionment shall representation, though rights and effective in ac- to fair still one-person, principles,” surely one-vote we cord with would had If so, conclude the Constitution been violated. that is possibility legislature remains that we should admit might attempt express result to reach the same without that suggests possibility This directive. another case a suitably might emerge that how standard demonstrates an incorporation partisan apportionment’s de classifica- facto (and rights representation tions burdens of fair and effective so establishes classification unrelated to the aims of fashion). apportionment impermissible is used in an thus says years, plurality prove nega in effect, years (“Eighteen essentially pointless Ante, tive. at 306 us”). litigation persuaded have As cor Justice Souter point during past years however, out, rect these the than courts could do no more follow Davis v. Ban lower single, apparently insuperable demer, which formulated (dissenting opinion). post, See at 344-345 More standard. years by the law 18 is rather a short over, the timeline of rapid technologies period. addition, In the evolution yet possibili apportionment suggests unexplored field districting Computer has become so routine ties. assisted legislatures, experts, sophisticated and courts can map hours, districts a matter of databases to electoral use g., Supp. 2d Cox, Larios v. 305 F. See, not months. e. curiam). (ND 2004) Technology (per is both a threat Ga. promise. if hand, the one courts refuse to enter and a On temptation any partisan gerrymandering, the tain claims districting partisan in an unconstitu favoritism use these new grow. hand, On the other tional manner will new methods of make may technologies produce analysis nature of more evident the burdens precise gerryman on the ders of voters and impose representational rights par That would court ties. facilitate efforts to and rem identify burdens, with intervention limited edy judicial by derived standards.

If suitable standards which to measure burden on gerrymander imposes representational did rights emerge, would show that the Court hindsight abandoned prematurely That the field. is a risk the Court should Instead, not take. we should what inis before us. adjudicate only papers Baker, S., (Harlan, (conclud See U. at 331 J., dissenting) claim ing malapportionment “should have been dis missed for ‘failure state a claim which relief can be upon because it is first granted’” “[u]ntil decided to what extent is limited [the] [to the Federal right apportion] Constitu tion, whether what has done or failed to [a State] do ... runs afoul of limitation, such we need not reach the is any ”). sues of ‘justiciability’ ‘political question’ Because, us, in the ease before we have no standard by which to measure the burden claim has im been appellants on their posed cannot es representational rights, appellants tablish that those alleged classifications burden political same to show that the rights. classifications Failing alleged are unrelated to the aims of evi apportionment, appellants’ dence at best demonstrates that the only legislature adopted classifications. That describes no constitutional flaw, at least under the Fourteenth Amendment governing Gaffney, standard. 752. As a conse quence, no appellants’ use of complaint alleges impermissible classifications and so states no political valid claim on which relief It a must be may dismissed as result. granted. see also Davis v. Bande See Fed. 12(b)(6); Rule Civ. Proc. mer, S.,U. at 134.

The thinks I resolve this case reference to with plurality ante, no standard, see at The 301, but that is Four- wrong. standard and there is no doubt teenth Amendment governs; any is that under the First Amendment and all consideration political apportionment interests an invalid. would be (“Only equal protection an Ibid. is claim us before present perhaps very good a First reason that case— Amendment if claim, sustained, it were would unlaw- render political districting”). ful all consideration of affiliation in misrepresents analysis. That the First Amendment The in- quiry political is not whether classifications were used. The inquiry political instead is whether classifications were used group’s representational rights. to burden were If a court impose to find that a State did on burdens and restrictions groups persons by or reason of their views, there would likely be a First Amendment violation, unless the State compelling shows depends some interest. course, Of all this having manageable first on by courts’ available a standard which apportionment to measure the effect of the so to impose conclude that the did State a burden or restriction rights party’s on the of a voters. alleged gerrymander purpose

Where it had the imposing party and effect of on a and its burdens disfavored may voters, the First Amendment offer a sounder and more prudential Equal basis for intervention than does the Pro- protection analysis equal its puts tection The em- Clause. phasis permissibility of an on the enactment’s classifications. by classifying This where race is involved race works since permissible. presents complicated It a more almost never question inquiry generally permissible is whether when impermissible purpose. for an has been used classification only question That can be answered in the affirmative subsidiary showing applied that the im- classification as poses analysis The First unlawfiil burdens. Amendment legislation rep- concentrates on whether burdens rights complaining party’s resentational voters for ideology, beliefs, reasons of association. analysis pragmatic or allows a functional assessment ac- cords Eu some latitude to the States. See v. San Francisco Comm., 489 U. S.

County Central (1989); Democratic Celebrezze, (1983). Anderson S. conclude understand plurality I do not

Finally, disfavors one is that party permis- gerrymandering partisan seems it not. to is Indeed, acknowledge the sible. plurality ante, (“We not [the] at 292 do disagree judgment” with demo- [are that incompatible] “partisan gerrymanders ante, it and case, that is the (noting cratic principles”); “an case, it to the assumes be that plurality opinion wnlawful”). excessive injection is [in of politics districting] to admit the of later reason This is all more possibility have to failed suits, parties while prove, holding just standard, and familiar” that these under our “well developed no arbi- but “reflec[t] classifications policy, simply legislative Baker, 226. That action.” and trary capricious about a standard that courts must be cautious said, adopting interests redistricting turns on whether partisan is deter- excessive. Excessiveness not easily were process these schemes: In one Consider mined. apportionment X State, controls apportionment process Party In draws the lines so it seat. captures every congressional Y controls the States, Party three other apportionment proc- but It is so blatant egregious, ess. proceeds in each effort, less than all more the seats capturing subtle of Y’s the total effect effort Still, capture State. Party X X’s new than gerry- more seats Party captured. Party was Y’s was more egregious. Party gerrymander mander however, In view, each more subtle. my culpable. of the demo- of our The working Republic, ordered restraint on a sense decorum and cratic depends process, in the itself. citizenry in all branches government, restraint was aban- one has the sense Here, legislative serve interests not be doned. That should thought it to serve should be of our order. Nor thought demonstrating democracy how to the world interest our pride, spoken it is unfortu- Whether with concern or works. point declaring legislators our have reached the nate “ apportionment: in the busi- that, when comes ‘We are rigging Hoeffel, Six Incumbents Are a elections.’” ness Away Easy Election, Journal, from Winston-Salem Week senator). p. (quoting 27,1998, B1 state North Jan. Carolina responsibilities require Still, the Court’s that we own re- failings from frain in this intervention instance.

many proposed measuring gerry- the burden standards imposes representational rights mander on make our in- improper. emerge If workable do tervention standards prepared burdens, however, measure these courts should join judg- to order I observations, relief. With these ment the Court. dissenting.

Justice Stevens, presented question by The central po- case is whether this gerrymandering justiciable. Although litical claims are our coming differ, reasons for to this conclusion five Members of plurality’s the Court are that the answer to that convinced question apparent Moreover, erroneous. as is from our separate today, writings that, we share the view even if appellants prevail, these it are entitled to would be con- trary precedent profoundly ju- to unwise to foreclose all might dicial review of advanced in similar claims that be presently differing future. That we have views— somewhat concerning precedential both the of our recent value of some applied cases and the that should in future standard be agree- cases—should not areas of obscure fact that the separate opinions greater ment set forth in are of far significance. concept justice equal requires under law the State govern impartially. Evans, 620, 517 See Romer v. U. S. (1996); (1983);

623 Robertson, 248, Lehr v. New 463 U. S. City Authority York Beazer, Transit U. S.

(1979). exempt governing plurality opinion Today’s would duty legislative in the context redistrict- from that officials partisan time, first ing give license, for the and would any justification. rational are devoid gerrymanders that legislature’s partisanship mo- my is the sole view, In when neutrality any pretense of un- is forsaken tivation —when districting abashedly criteria sub- all traditional body governing partisan advantage cannot verted for —the impartially. to have acted said holding Although in reaffirm the central Court we (1986), Bandemer, we 478 U. S. have not reached Davis v. govern ger- agreement partisan that the standard should on rymandering on a I would decide this case narrow claims. Plaintiffs-appellants urge ground. us to new craft rules judicial review elec- in authorize of statewide effect would process protect from a tran- results the democratic tion power voting majority’s of its to define sient abuse districts. plurality’s agree refusal to undertake ambi- I with the persuaded, project. Ante, however, I am at 284-290. tious apply proposi- failed well-settled the District Court granted dis- law the defendants’ motion to tions of when Furey’s gerrymandering claim. plaintiff-appellant Susan miss Furey registered According complaint, is a Demo- to the County, Montgomery at an Penn- crat resides address who districting plan sylvania, the 1992 was located under plan adopted Under the new Congressional District 13.1 Furey’s places Assembly address now the General Furey alleges “non-compact” that the District 6.2 in the her “solely” to the districting plan created effectuate new was Assembly the re- Republicans,3 and that General interests partisan “exclusively” ad- principle of “maximum on a lied my Furey’s plan.4 judgment, drawing In vantage” when 1 to 129a. Juris. Statement App. 2 Ibid.

3Id,., at 142a.

4 Id., at 143a.

319 (1) sufficient that she establish: has plainly allegations of District 6; standing challenge constitutionality her claim is foreclosed district-specific by Bandemer of a statewide claim of plurality’s rejection politi- (3) that she cal has stated a claim gerrymandering; that, with 6, least District at redistrict- respect Pennsylvania’s violates the enunciated ing plan equal protection principles before and after Bandemer. both in our cases voting rights District The Court therefore erred when it the de- granted fendants’ motion to dismiss Furey’s claim.

I Baker Carr, Prior to our seminal decision v. 369 U. S. (1962), 186 this Court had heeded majority Justice Frankfurter’s about the dire conse- repeated warnings thicket” of dis- quences entering “political legislative Colegrove Green, (1946). U. S. tricting. As result, even the most were shel- egregious gerrymanders review.5 It was after Baker that we first tered from judicial decided that the Constitution from prohibits legislators district lines that diminish the value of individual drawing In votes districts. that conclu- overpopulated reaching 5In for the Illinois Colegrove, example, Legislature had drawn State’s district the 1901 lines under State Act and had not Apportionment decades, in the reapportioned ensuing “despite figures four census indicat S., ing great in the distribution of the 328 U. at changes population.” J., (Black, Illinois’ districts in 1945 dissenting). populations of 900,000 112,000 from ranged the least district consequently populous Frankfurter, Nonetheless, Court, in the con most. Ibid. Justice per cluded “due re regard working the effective our Government vealed this to be of a nature and therefore not peculiarly political issue later, Id., meet judicial years determination.” at 552. Fewer than Court, confronted with a of facts —a Tennessee strikingly similar set un apportionment virtually set a 1901 remained plan statute that had changed in obvious tension despite population dramatic growth held,— cause of action. Colegrove, complaint justiciable stated a Baker, S., distinguished 369 U. 197-198. The Court Colegrove 235. “a refusal to exercise simply equity’s powers.” 320 be . should we . . bodies

sion, “legislatures explained Reyn will,” to collectively responsive which are popular Sims, olds (1964), 377 U. S. and we v. accordingly aim of “the basic legislative described apportionment” and effective citi . . fair all representation . “achieving id., at 565-566. Consistent with we also zens,” goal, had claims that discriminated reviewed majority against of voters multimember dis by drawing groups particular minimize cancel tricts that threatened “to out voting of racial or elements of strength political voting popula Dorsey, (1965). tion.” Fortson 433, 439 v. 379 U. S. Such “if to constitutional ra districts were “vulnerable” challenge out been fenced cial or political ha[d] groups their minimized.” voting strength invidiously process Gaffney Cummings, (1973). S. v. See also Chavis, Burns v. Rich 124, 143 (1971); Whitcomb 403 U. S. ardson, (1966). 73, 88 384 U. S. Bandemer, in atS., 118-127, 478 U. holding parti-

Our are claims followed ineluc- justiciable san gerrymandering in Baker, 186. from central U. S. reasoning tably Baker less true in is no true this context: was What is the of state action “The here consistency question no with Federal Constitution. We have question branch of decided, decided, or to by political govern- this Nor do we risk embar- Court. ment coequal abroad, or of our disturb- grave rassment government issue with as to at home if we take ance [Pennsylvania] of her action here Nor challenged. constitutionality action, order succeed this need the appellants, determinations ask enter policy the Court upon standards Ju- lacking. which manageable judicially under the Protection Clause are dicial Equal standards familiar, has been well open developed enactment the Fourteenth Amend- courts since the must, if facts determine, on particular they ment no ar- reflects but discrimination simply that a policy, Id., at 226 (footnote and action.” bitrary capricious omitted). claim is submitted [gerrymandering]

“[T]hat by politi- cal rather than a racial group, does not group, distinguish Bandemer, in of terms cases] S., [the justiciability.” U. at 125. ante, case,

At issue in as the this states, 278, plurality is Baker’s second test —the or presence absence of judicially The standards. manageable standards judicial applicable claims are rooted in gerrymandering decisions deeply Bandemer and have been long preceded refined in later cases. those well-settled Among is the under- principles that a district’s standing peculiar be a shape might symptom of an illicit in the purpose Most no- line-drawing process. Lightfoot, Gomillion in v. tably, U. S. 340 (1960), the Court invalidated an Alabama statute that altered the boundaries of the city “from a Tuskegee to an square uncouth for the sole twenty-eight-sided figure” purpose African-Americans from in preventing voting municipal elections. The of bizarre and allegations shape improper motive, “if would proven, abundantly [have] established] that Act 140 was an ordinary geographic redistricting measure even within familiar abuses of gerrymandering.” Id., Kirkpat- 341. Justice Fortas’ in concurring opinion Preisler, rick 394 U. (1969), S. which referred to as “the deliberate and distortion gerrymandering arbitrary of district boundaries and populations partisan per- sonal also political identified both purposes,” shape pur- as pose relevant standards. attached as exhibits maps in Gomillion, at 348 (Appendix opinion Court), and in cases demonstrate subsequent voting rights that an “uncouth” or bizarre can a dis- shape easily identify trict for a nonneutral designed single-minded, purpose.

With ultimate other considerations purpose inquiry, have standards supplied lawfulness of testing ready Bandemer, In his dissent Justice gerrymander. Powell “the merits claim must

explained gerrymandering to the reference dis- determined configurations subdivision tricts, lines, observance of other have relevance criteria that fairness independent S., at 165. this 478 U. redistricting.” Applying three-part Powell first reviewed the standard, Justice used procedures and noted Indiana’s that the redistricting process party had excluded the from its deliberations opposition power had on data excessive placed weight concerning, party voting Id., Second, trends. at 175-176. Justice Powell pointed of districts that tra- strange shape conspicuously ignored Id., ditional at 176-177. He noted districting principles. on of such residents of the uncouth dis- shapes impact tricts,6 he included in his and that illustrated opinion maps id., 181,183. of the district at Third irregularity shapes, and Powell Justice reviewed other evi- “substantial finally, dence,” statements and ac- including contemporaneous press counts, the architects of the districts demonstrating Id., “were motivated by considerations.” solely partisan at 177.

The has made use of all three Court Pow Justice parts ell’s its racial standard in recent gerrymandering jurispru cases, dence. In the Court has those examined claims that schemes violate the redistricting protection equal guarantee where are “so on their face they highly irregular” they as other cannot understood than an “rationally anything race, Reno, voters Shaw 509 effort” v. U. by S. segregate (1993) (Shaw I), where 630, 646-647 “race for own sake, its other was the districting principles, legislature’s dominant and rationale its. district controlling drawing (1995). lines,” Johnson, 900, v. 515 U. S. 913 Miller potential great,’ 6“‘[T]he voter nonparticipation disillusion.and their voters forced to focus activities artificial electoral voters, affiliation, regardless party units. this sort Intelligent resent no political manipulation public of the electorate for 478 purpose.” (citation omitted). S., U. at Cromartie, (2001);

also v. 532 U. S. Easley 234, Shaw v. II).7 (Shaw Hunt, 517 U. The S. Shaw line has one of cases area emphasized “reapportionment in which matter,” I, S., do appearances Shaw and has focused on the both districts shape challenged purpose behind the line-drawing assessing districts under constitutionality majority-minority Protection decisions, Clause. These like Pow Justice Equal in Bandemer, ell’s have also considered opinion process which the enacted,8 schemes were looked to districting other evidence consider demonstrating purely improper ations motivated the decision,9 included maps illustrating outlandish district shapes.10

Given this clear line of I should have precedents, thought in cases such as this —where question justiciability set of that a motivation resulted in a plaintiffs argues single scheme effects —to be well districting discriminatory settled. conclusion cannot be plurality’s contrary 7The in these decisions followed not only from Gomillion reasoning I, (1960), Lightfoot, see Shaw 509 U. 364 U. S. 339 (relying 644-645 Gomillion), but also from Justice Powell’s observation in Davis v. Ban on demer, 109, 173, (1986), cases, n. 12 478 U. S. that some of proof “[i]n more, without may, district grotesque shapes of provide convincing proof gerrymandering.” unconstitutional 8 Johnson, 900, Miller v. In (1995), 515 U. S. 917-919 the Court reviewed the procedures by Georgia the Legislature followed to the responding Justice its Department’s objections original plan, and the the part operator computer” of its the dis “reapportionment played designing tricts, “that legislature its conclusion tradi support subordinated Vera, See also Bush v. tional to race.” 517 U. S. districting principles (1996) 952, 961-962 opinion) (plurality computer program use of (discussing lines). to manipulate district 9 II, Shaw 517 899, 910 (1996), In instance, S. U. the Court considered the fact that reports regarding certain effects past of discrimination were not before and therefore a legislature could not have role played in the districting process. 10 Cromartie, Vera, 541, (1999); S., Hunt v. Bush v. U. 526 S. 554 U. Miller, S., 928; I, 509 at Shaw 515 U. at at 659. (plurality opinion); of decisions. with our long history voting rights

squared ipse dixit is the distinction Especially perplexing plurality’s of our racial cases. Notably, plurality gerrymandering that the standards does not argue judicially manageable racial have been used to claims adjudicate gerrymandering would not manageable gerrymandering equally Instead, its distinction of those cases on cases. its rests criterion more that race as a is “much rarely view districting ante, and than that deter- 286, encountered” at partisanship, and whether race —“a rare constitutionally mining suspect “is different motive” —dominated decision districting quite whether is so substan- from [such decision] determining excess of an motive affected lawful tially ordinary ibid. But invalid],” those are as to considerations [be] to the issue of irrelevant wholly justiciability. errs in with,

To begin plurality assuming politics lawful is “an motive.” We have re ordinary squarely that a discriminate on the basis the notion jected “purpose ante, 286, 293, is never strict scru subject politics,” belief con On and association tiny. contrary, “political those activities the First stitute the core of protected by Burns, Elrod Amendment,” 347, v. 427 U. S. (plu discriminatory governmental decisions rality opinion), First Amendment interests fundamental burden Dept. id., cf. Police Chi 363; to strict scrutiny, subject Mosley, cago (1972). S. 94-95 unless Thus, 408 U. v. is an requirement posi affiliation appropriate party officials not base a decision tion in may question, government transfer, recall, or retaliate to hire, discharge, promote, terminate on the contract, or to an against employee, See Board affiliation speech. individual’s partisan Umbehr, Cty. Comm’rs, Wabaunsee 518 U. S. 674-675 v. City Service, Northlake, Inc. Truck v. O’Hare (1996); Republican Party Ill., (1996); Rutan 712, 716-717 U. S. Finkel, Branti v. 445 (1990); S. 497 64-65 U. S.

325 Elrod, It follows S., 427 U. at 355-363.11 (1980); 519-520 an standard is not affiliation appropriate that political district. voters from congressional excluding not our do that cases sup patronage The plurality argues strict be should applied scrutiny proposition port cases because is elementary “[i]t gerrymandering political Ante, It is 294. levels are claim at scrutiny specific.” is rele the level however, of scrutiny also elementary, there has been a constitutional to the whether vant question The standards violation, not the question justiciability.12 re and discernible above are manageable outlined judicially in which must be of the number of cases ap they gardless which at occurs.13 or the level of scrutiny analysis plied I Vera, Bush the dicta from Shaw 952 517 U. S. v. Thus, ante, relies, 293-294, at (1996), on which the plurality not all to the because at they speak subject beside the point, exists be- while of course difference And of justiciability. dissenting opinions assume that the seems to opinion The plurality Rutan, (Scalia, (Scalia, J.), S., Umbehr, at 92 497 U. 518 U. at 686 not practice expressly “when a J.), namely, that state the correctly law — endorsement of bears the Rights Bill of the text prohibited by dates back use that unchallenged widespread, of open, tradition long no striking we have basis proper Republic, to the beginning of ante, down,” id., (tracing history 274-275 Cf. at 95. inquiry “[o]ur But century). of the 18th gerrymanders beginning to the “[rjather, com inquiry must history”; judgment does not begin aby implicated limitations constitutional identification mence with Elrod, S., at 427 U. 354-355. practice.” challenged governmental trigger would strict that otherwise claim that a saying It without goes Wright, g., e. Allen See, v. nonjusticiable. scrutiny might nonetheless (per 416 U.S. 312 Odegaard, DeFunis (1984); U.S. curiam). “accep[t] degree a modest willing it is explains The plurality clear,” ... is but command the “constitutional where unmanageability” severely both dubious and ... obligation “constitutional where the doubt this statement cast Ante, does only Not 286. unmanageable.” cases, but its reason gerrymandering racial on in our plurality’s faith ing clearly tautological.

326 protected by interests the First and the constitutional

tween patron- the relevant lesson of Amendments, the Fourteenth always benign partisanship is a con- age that cases is appears any event, plurality assume. In as the sideration opinion, agree plurality’s that seems the Ias understand engages “political gerry- in far” —if it goes “too if the State in violates the mandering politics’ sake”—it Constitution for gerrymandering “racial for way it undertakes as if same the But that sort at 293. of constitutional Ante, race’s sake.” by plurality the courts, the main- be touched violation cannot obligation judicial to intervene is “dubi- the tains, because Ante, at 286.14 ous.” against minority that discriminates

State action purpose maximizing power for the and unadorned sole duty plainly majority violates decisionmaker’s of the Gerry- g., Lehr, impartial. e. at 265. See, U. remain legislators’ predictions necessarily rest on manders groups will vote in the of certain identifiable .. . “members way.” Bolden, 55, (Ste- S. v. same Mobile line-drawing concurring judgment). “In J., vens, gerrymanders religious, process, ethnic, and economic racial, political gerrymanders.” Id., Thus, 88. species of are all political gerrymandering in both racial critical issue single nonneutral criterion con- cases is the same: whether districting process such an extent that Con- trolled the precise has treated This stitution was offended. Court line of justiciable and in the Shaw question as in Gomillion persuasive supplied no reason today’s plurality has cases, and justiciability partisan to recognize reluctance plurality’s The such claims recognizing fear that part seems driven gerrymanders ante, But at 286. the list See flood of litigation. will rise to a give ante, suggests that it in its footnote lengthy cases cites Bandemer, three just average been an there has since the two decades That volume every year. filed cases partisan gerrymandering or four of litigation to the amount example, trivial when obviously compared, Reyn one-vote” rule. “one-person, adoption that followed our Sims, (1964). olds 377 U. S. 533 justiciability partisan gerryman- distinguishing Those and reinforce ders. cases confirm holding claims are gerrymandering justiciable.15 partisan

II in Bandemer dealt with a claim that plurality opinion the Indiana scheme for state dis- apportionment legislative Democratic tricts discriminated voters on a state- against wide basis. In Bande- S., 478 at 127. the my U. judgment, mer Court was to entertain that statewide correct challenge, the because in case a that harm that plaintiffs alleged group affected members of their the State. In throughout party line of racial cases, subsequent however, gerrymandering the Court shifted its focus from statewide challenges as a matter of that required, standing, plaintiffs stating race-based claims reside in the dis- equal protection actually See United States v. tricts are 515 they challenging. Hays, (1995). 737, U. S. 745 Because has altered the stand- Hays rules for because, claims —and in ing gerrymandering my view, racial and political gerrymanders species same constitutional concern —the Hays standing rule re- dismissal of the statewide claim.16 But that not quires does 15 Bandemer, for the Court in Justice White Writing it well: “That put of the complaining group characteristics are not or that the immutable to the same subject has not been historical group stigma may be relevant adjudicated, to the in which the case is manner but these differences do S., not to entertain such a case.” a refusal 478 U. at 125. justify ante, 280, 6, plurality today, that cites The cases at n. support would have been wise to it endorse the expressed conclusion views Bandemer, S., in in dissent 478 U. Justice Powell’s concur my (1983). Daggett, rence in Karcher 462 U. S. I remain convinced correctly interpreted law. If that were opinions our standard case, in this case applied challenge to the statewide a trial of the entire For of I purpose case, though would required. deciding this even I decision in Shaw was dissented from our convinced that and.remain the Skaw decided, I cases stare decisis effect give would in the incorrectly context. Given the disposition gerrymandering illogical Court’s however, I case, of future cases would this feel free to reexamine specific Challenges districts, as such the matter. end type to different cases, relate a in the Shaw those considered allegations necessarily “representational” those harm, and district-by-district The basis. com- on a be considered must types injuries group both plaint alleges case in this —a Pennsylvania throughout and a to Democratic voters harm injury Furey representational as more individualized 6. resident District districting plan, plaintiffs- challenge

In to a statewide injured they complain appellants have been because membership group. particular, identifiable their example, alleged plaintiffs-appellees Bandemer, “that whole, as a Democratic Democratic voters over the State particular subjected ha[d] districts, voters in been to uncon- (citing stitutional com- discrimination.” they injured plaint). They specifically claimed were group rep- members of a because number Democratic was not with the number of resentatives commensurate throughout Democratic voters Indiana. Much like the plaintiffs-appellees plaintiffs-appellants Bandemer, in this allege plan Republicans, case that the statewide will enable Pennsylvania’s to voters, who constitute about half of elect 19-person congressional or 14 members the dele- State’s Hays, gation.17 plaintiffs-appellants however, Under lack challenge standing districting plan to a statewide on S., basis. 515 U. 744-745.18 specific challenge

A a to district or on other districts, alleges type entirely injury hand, a different —one not standing surely suggest issue. I would that a would never plaintiff litigate have claim. standing to statewide 17 App. Juris. Statement 138a. “[vjoters explained Hays, As the Court districts [gerrymandered] sus may special representational constitutionally suffer the [that harms hand, pect] can in the the other voting classifications cause context. On district, plaintiff in such a not suffer where a does live he or she does S., at . ...” special those harms 745. recognized as gerrymandering have racial cases recent our challeng- plaintiff held In I we that “a cognizable.19 Shaw reapportionment Equal Protection ing statute under the legislation, may alleging state a claim Clause rationally face, its under- though neutral on cannot be race anything separate an effort voters into as other than stood at 649. S., districts on the basis of race.” 509 U. different describing pernicious consequences race- After districting designed enhance when conscious —even minority why explaining representation of after —and shapes probative dramatically irregular “‘have sufficient ” explanation,’ (quoting id., Karcher for an at 647 force to call Daggett, J., concur- 462 U. S. (Stevens, message misshapen ring)), district sends we described the officials: to elected obviously solely effectuate a district created

“When group, perceived interests of one racial common likely pri- their more to believe that elected officials are only represent mary obligation the members of is to constituency This group, their as a whole. rather than system representative to our altogether antithetical democracy.” I, 509 U. 648. Shaw premise ger- that racial Undergirding cases is the the Shaw they disrupt wrong when rymanders effect a constitutional ordinarily tether elected of- representational norms a whole. ficials to their constituencies explained, “should be bodies “[legislatures,” have we Reyn- popular will,” collectively responsive to the which are by “[legislators voters, are elected olds, S., 565, 377 U. at 19 Bandemer, S., itself that acknowledged at 478 U. The in plurality “is challenge in a statewide inquiry” protection “the equal focus of the in the review of individ that involved from different necessarily somewhat ual districts.”

330 interests,” id., at cities economic 562.20 Ger- or

not farms that norm because the subvert representative rymanders in a district an election gerrymandered winner of inevitably her attributable to the that success will infer primarily than to a district rather defined constituency of the architect The Shaw cases this hold that dis- neutral principles. by process representative imposes cognizable ruption S., at 745. Hays, U. Be- har[m].” “representational on the harm voters the district falls cause squarely or does whose representative might misperceive object when stated her cognizable fealty, injury only by see district, II, who reside in Shaw voters particular 904; otherwise would S., 517 U. “plaintiff asserting conduct against governmental only generalized grievance S., does not of which he or she approve,” Hays, Vera, 517 U. also Bush v. at 957-958 745. See (plurality opinion). case this includes a statewide

Although complaint states claim Furey challenge, plaintiff-appellant stronger resident of the District 6.21 She as a misshapen complains about from the elec- not merely injury resulting probable not tion of a does congressional delegation fairly repre- Comm’n, Election Cf. McConnell Federal 540 U. S. (“Just quid pro quo as troubling functioning to a classic democracy as danger will decide issues not on corruption is the that officeholders constituencies, to the according or the desires of their but wishes merits who have financial contributions valued large of those made officeholder”). registered Vieth are Richard and Norma Jean Plaintiffs-appellants to Juris. 129a. App. who reside in District 16. Statement Democrats resided in a different district under they does claim complaint scheme, it does on Fur anywhere districting allege, old nor does it A behalf, shaped. glance is irregularly that District 16 in ej^s particular is not un infra, map, especially that District 16 at the reveals appended Dis regarding specific allegations usual its contours. Without more 16,1 limit to District 6. trict would the analysis

331 the harm State, or about from the entire sent flowing District election of a 6.22 Republican represent probable of that dis- that also grotesque configuration She alleges harm on the members of the trict itself imposes special in District 6 that minority residing directly parallels in I. Officials elected the ma- the harm Shaw recognized by claims, in such a she “are more district, likely jority party their is obligation only believe primary represent of that rather than the aas members constituency group, This is the harm that cases whole.”23 Shaw precisely in of racial treat as the context cognizable gerrymandering. in same warranted this treatment case. harms in The risk identified the Shaw representational cases is if not the context of equally great, greater, parti- I was borne the concern san Shaw gerrymanders. from a will

an official elected district racially gerrymandered constituents, feel beholden to a of her and that only portion those constituents will be defined race. 509 at 648. of a is that The parallel danger partisan gerrymander will who her representative perceive people put who drew the rather than those who are those map power of her ballots, cast and she will feel beholden not to subset no of her at all.24 The but to constituency constituency, part the will is that of the problem, cartographers simply put, will rather than As the will Judge people govern.25 22 Furey represented was located District was When her residence by a App. Democrat. 261. 23 App. Juris. Statement 142a. congressional many today’s evidence demonstrates “[A]mple not to states’ representatives People owe their election ‘the several Note, but to the state Harv. L. Rev. mercy legislatures.” (2004). 25In this the American cousin of sense the partisan gerrymander English Members of Parlia English system, “rotten In the borough.” despite ment were that remained unchanged elected from units geographic rep- the Industrial Revolution. “Because population changes wrought by “extreme wrote, partisan gerrymandering Ward recently in which the choose their to a representatives leads system Perry, Session constituents, rather than vice-versa.” curiam) (per 2004) (ED Tex. 2d 516 (concurring F. Supp. in in and dissenting part). part

Ill serve in some two the con- Elected officials sense masters: who them and the who political elected stituents sponsors are, course, of to them. Their obligations support primary but it is neither realistic fair to the nor general, public the of them political consequences expect wholly ignore would idle ... their decisions. “It to contend that any taken into re- consideration account a fashioning political Gaffney, is sufficient invalidate it.” plan apportionment 412 at 752. factors are common and S., Political U. permissi- a of art of democratic ble elements governing society. while considerations influence But may properly dis officials, when such our elected decisions decisions vast over population, inequities developed was not based on resentation Sarum, for in- rotten Old boroughs. time in the form of the so-called same a few stance, only sheep yet had no human sent the residents — — Yorkshire, a mil- nearly to Parliament representatives number of in the Representation The Politics of Size: Zagarri, lion inhabitants.” R. (1987). States, 1776-1850, “many system, 37 As a result of this p. United members, while towns did many important returned insignificant places not,” by tiny towns members were often elected large and “even in Butler, The Great Reform J. population.” Passing fraction of the “[tjhe (1914). Meanwhile, mem- patron bribed or Bill 176 Government cash,” actual by and offices or by ber means of distinctions or both Ibid. way.” electors in the same and member bribed the “[t]he patron our one- one-person, violate familiar boroughs clearly The would rotten of such rule, because the troubling representative but also they vote were patron government to his loyalty owed primary his borough (if any). Similarly, in gerryman- he had rather than to his constituents by selecting defined criteria districts, local neutral groups instead of dered who of the districts select it is architects representatives, their and, effect, the representatives. constituencies members of a the mi advantage minority group —whether race, is defined members’ its nority by politi religion, on a must rest neutral they cal predicate. affiliation — Wong, Hampton v. Mow Sun (1976) (“The U. S. 88, 100 States, must federal like the sovereign, govern impartially”); Bandemer, (Powell, S., at J., dissenting). enforces

Constitution “a commitment the law’s neutrality Romer, where the are at stake.” rights persons 517 U. at 623. See also Board Trustees Univ. Ala. v. Gar rett, 531 U. S. J., (Kennedy, concurring) (“States entities, act as neutral to take instruction and ready to enact laws when their so demand”). citizens Thus, Protection Clause Equal implements duty govern impar at the least, that tially decision requires, very every the serve some sovereign nonpartisan public purpose.26

In a claim that a decision violates evaluating governmental the Protection Clause, we have Equal a show- long required Washington Davis, of See ing v. discriminatory purpose. 26 elections, In the realm of federal requirement the of governmental neutrality is buttressed this Court’s recognition that the Elections Clause is outcomes, not ‘“a source of to dictate power electoral to favor or candidates, disfavor a class of or to evade constitutional re important Gralike, straints.’” Cook v. 510, U. U.S. Term 531 S. 523 (quoting Limits, Thornton, (1995)). Inc. 779, 514 U. S. And duty 833-834 this to govern impartially extends to executive and officials legislative alike. Beginning 1789, as early as its first session in has num Congress passed a ber of statutes designed guarantee that Executive Branch employees Curtis, their duties. See Ex neutrally 371, out parte carry 106 U. S. 372- (1882). Some of those laws avoided the danger government that “the may itself be made to furnish the the indirectly money defray expenses of the keeping political party in to have for the time power happens Id., being the control of the public at 375. It is “fundamen patronage.” tal” that employees federal “are the law and expected to enforce execute the programs of the or against Government without bias or favoritism for the members thereof.” Civil Service any political or party group or Carriers, (1973). Comm’n v. Letter expecta 413 U. S. 564-565 That tion reflects of laws” the that “the execution the principle impartial Id., “great end of Government.” at 565. (1976).27 applies requirement That with full S.U. districting The line that decisions. divides a racial

force unevenly minority between school districts be or ethnic can legitimate entirely if chosen the basis of on neutral factors— boundary example, county lines, for or a natural such as a major thoroughfare. ifBut the river or district lines were limiting minority of purpose for the of number chosen holding school, or of in the number families un- students popular religious purpose views, that invidious surely district. would invalidate the Gomillion v. Lightfoot, Kiryas S., at cf. Board Ed. 344-345; 364 U. Village Grumet, Joel School Dist. v. 512 U. S. 699-700 (1994). principle, gerryman- our recent racial

Consistent with that shape dering cases have examined the the district and body districting purpose race, determine whether predominated line-drawing criteria, other above all by holding districting process. began I Shaw that a We [could] on its that it scheme could be “so irrational face only segregate sepa- effort to voters into understood as an voting of their rate districts because race.” explained we Ps Then, Miller, Shaw irrational- 658.

shape lines did treat bizarreness of a district’s test not irregularity violation; rather, itself as a constitutional “persuasive I was in Shaw the district’s contours circumstan- sake, dis- tial that race for its own other evidence legislature’s principles, dominant con- tricting was drawing S., district at trolling its lines.” 515 U. rationale in 27 Davis, to an earlier New Washington v. challenge we referred to a In that had failed because the had plaintiffs statute York reapportionment was of product ‘“the a state contrivance that the not shown statute ” S., at place origin.’ 240 (quot the race or 426 U. on basis of segregate (1964)). that emphasized 376 U. S. 58 We ing Wright Rockefeller, the Wright been unanimous issue identifying the Court had ” on racial lines.’ . .. were drawn purposefully the ‘boundaries “whether 67). S.,U. Wright, at S., 240 376 at (quoting U. then, cases, Under the Shaw the as crite- 913. use race redistricting impermissible, per rion in is not se I, see Shaw S., 642; II, at Shaw 509 U. 517 U. S. race 899, but when paramount status —when elevated it is the be-all end- redistricting process legislature the gone all of too has —the simply far. “Race must not have been a ... but motivation predominant motivating legislature’s the factor district- (internal ing Easley, quotation S., decision.” at U. omitted). marks and citations shape objective

Just as irrational can serve as an indicator impermissible legislative purpose, objective of an other fea- districting map plan tures of a can save the from invalidation. explained We have districting principles,” “traditional “compactness, contiguity, which include respect polit- “important subdivisions,” ical they are not because are con- required stitutionally they objective ... but because fac- may tors that serve to defeat a claim has district been gerrymandered I, on racial S., lines.” Shaw at 647 509 U. (citing Gaffney, 412 18; U. n. S., Karcher, S.,U. concurring)). at 755 (Stevens, J., or “Where these other redistricting race-neutral considerations are basis for legislation, race, are not subordinated a State can ‘de- gerrymandered feat a claim a district has been on racial ” (quoting Miller, lines.’ 515 S., I, U. at 916 Shaw 509 S., 647). my apply In same should view, standards to claims of political gerrymandering, gerrymander for the essence of a group regardless of is identified as same whether political always Gerrymandering involves the racial. drawing voting boundaries maximize the of district strength dominant faction and to minimize groups opponents. Mobile, strength one or more (Stevens, concurring judgment). 446 U. In J., at 87 seeking necessarily judg- legislators make result, desired probability ments the members of identifiable about the 336 economic, ethnic, or racial —will religious,

groups —whether The in a certain of those vote way. overriding purpose pre- Karcher, 462 U. S., See dictions is at 749-750 political. Mobile, 446 S., at J., U. 88 concurring); (Stevens, (Stevens, It in follows that J., the standards concurring judgment).28 and redress a that enable courts to racial identify gerryman- the same function for der could other also species perform Bandemer, Cousins v. S., 478 at 125; See U. gerrymanders. Chicago, City (CA7 (Ste- Council of 1972) 2d 466 F. 830, J., vens, dissenting). cases

The racial therefore a judi- gerrymandering supply standard for when cially determining manageable partisan- like has too race, a role ship, played great districting in, as can be a factor but . race cannot Just dictate process. so of, the outcome too can districting process, partisan- consideration lines, district ship permissible drawing If, as does as so not predominate. long plaintiff-appellant motive of has alleged, predominant Furey legislators sole who District and the for its bi- designed justification zarre was a to discriminate against politi- purpose shape, invidious should cal invalidate minority, purpose district. reasons the standards ra- plurality evaluating in cases are not workable such this

cial gerrymanders considerations, unlike racial ones, because partisan per- Ante, at 285-286. Until however, fectly legitimate. today, intimation in there has been the any opinion slightest that a naked Member of this Court written purpose by any race, in the dis view that as a factor my 28 I elsewhere explained have consideration. any from other is no different tricting process no and no than creat district better worse Creating majority-minority Polish-American, district. Irish-American, or Italian-American an ing abrogated its whether the sovereign all the relevant question In events (Ste Karcher, 462 U. S., at 753-754 neutrally. obligation govern (Stevens, vens, J., at Mobile, J., concurring concurring); F. 850-853 Chicago, Council 2d City Cousins judgment); (CA7 1972) (Stevens, J., dissenting). would a rational to minority disadvantage provide political line.29 On the our basis a district drawing contrary, opin to have as ions referring gerrymanders consistently political undesirable, at least we sumed were they always indicated have considerations are those among political factors dominate decisions.30 may districting are “rational” in Purely sense, motives literal but partisan must be a there ‘rational’— word “[T]he limiting principle. at for me elements of least —includes and neutral legitimacy that must characterize the of the ity always performance to Cleburne v. Cle duty sovereign’s impartially.” govern Inc., burne (STE Center, (1985) 432, 473 U. S. 452 Living VENS, J., A one controlled concurring). legislature party not, instance, could taxes on members of special impose the use tax to or revenues the minority party, pay majority The rational basis for party’s campaign expenses. govern ment decisions must a standard of satisfy legitimacy 29The plurality’s long history political discussion of gerrymanders ante, 274-277, at but it interesting, is not surely suggest intended that the of an invidious vintage practice “an American political tra —even Comm’rs, Board dition old Cty. Wabaunsee v. Um Republic,” as the of behr, (Scalia, 668, J., 518 U. S. 688 dissenting) insulate it —should State, e. g., from Bradwell v. constitutional review.. Compare, 16 Wall. 130 (1873), Hibbs, Human Dept. Nevada Resources 721, v. 538 U. S. of (2003). 729 historical might discussion be relevant if it attempted justify political as an use of gerrymandering acceptable governmental power. end, however, In plurality’s the the position defense its comes down to unconvincing juridical capacity assertion that lacks the administer Court its standards fashioned in racial recent gerry mandering jurisprudence. 30 Bandemer, S. 109 (plurality opinion); Gaffney Cummings, 478 U. v. 412 Chavis, 735, (1973); 124, 143 (1971); U. S. Whitcomb v. 754 Burns 403 U. S. Richardson, 73, 88 (1966); v. Fortson v. 433, Dorsey, U. S. U. S. (1965). statements, Consistent with these District Court a recent- case correctly described as “a political gerrymandering purely partisan that, core, exercise” at and “an its power abuse of evinces a fundamental voters, distrust of parties the self-interest at serving Balderas expense of the Juris. public good.” Statement App. Texas, 01-1196, O. T. No. 10. p. basis can neither rational an purely acceptable neutrality; id., 452-453. nor partisan. purely personal course, not, does require proportional The Constitution In that racial, ethnic, political groups. representation Ante, held, at 288. We have I with the agree plurality. however, political groups representation proportional objective, Gaffney, is a permissible that a deci- majority’s of us have opinion some expressed of a racial sion to enhance representation minority when the decision is de- particularly equally permissible, Act of to 1965.31 Voting Rights comply signed embraces the view that Thus, today— plurality implicitly contrived for the sole of disad- that a gerrymander purpose one is less than a minority vantaging political objectionable It benefit a racial flawed. minority to doubly seeking —is between an invidious and the obvious distinction disregards and it assumes race cannot a mistakenly benign purpose, basis making political judgments.32 provide legitimate 31 Vera, II, (Stevens, Bush See Shaw S., J., v. dissenting); 517 U. at 918 Miller, (Stevens, S., J., 515 U. at 947- dissenting); 1033-1034 517 U. (Ginsburg, J., dissenting). 948 32 basis for a governmental so seldom a rational provides Because race decision, always fail to survive “rational basis” classifications almost racial objec race is by equally decision influenced every But scrutiny. “[n]ot (2003). Bollinger, tionable.” Grutter When race is v. S. political judgments, may making predictive used as the basis for unreliable) (or characteristics, political such as group as other ais reliable that race is status, The fact an affiliation, origin. or national economic anything that there is immutable does not mean immutable characteristic any racial class.. behavior of the members political or certain about the Bolden, (1980) (Stevens, J., See Mobile concurring 446 U. S. vote for of all races sometimes Registered Republicans in judgment). candidates, vice versa. Democratic race, is not unlike her person’s politics, that a asserts plurality Ante, assertion is belied 287. But that “discernible.” readily no seem to have of political gerrymanders the architects evidence all, voters’, eligibility After affiliation. in difficulty discerning to register party her often the citizen requires in elections primary vote her race. affiliation, register her requires but it never sum, district, In to a evaluating challenge specific I would standard set forth in the cases and Shaw apply ask whether allowed considerations legislature partisan drawn, to dominate control the lines all neutral forsaking Under if no neutral criterion can principles.33 my analysis, drawn, be identified the lines and if the justify only possi- for a is a ble district’s bizarre naked desire explanation shape to increase then no rational basis partisan strength, exists district save the from an Such equal protection challenge. test would a narrow cover a few meritorious only claims, but it would abuses, extreme such those preclude disclosed by (ND Eu, the record Badham v. 694 F. Cal. 1988), Supp. aff’d, 488 (1989),34 U. S. 1024 and it summarily would per- shorten the time in which the haps effects period pernicious of such are felt. This test would gerrymander mitigate the current trend under which considerations partisan the be-all and end-all becoming apportioning representatives.

IV has a claim stated Plaintiff-appellant Furey plainly District 6 constitutes an unconstitutional partisan gerryman- der. to the 2002 redis- According complaint, Pennsylvania’s six tricting plan alone . . . into splits “Montgomery County 33The one-person, obviously one-vote rule constitutes a neutral district criterion, ing but our cases have gerrymandering never cited that princi ple as one of the “that may traditional criteria serve to defeat a claim that I, S., a district has been Shaw on racial lines.” gerrymandered at Thus, 647. I district would that a require justified with reference to both the some one-person, one-vote rule and other neutral criterion. See Bandemer, (Powell, J., 162, 168 478 U. at concurring part in and dissent ing part). 34The California at issue Badham featured a large scheme districting number of districts irregular shapes, all highly designed, plaintiffs-appellants alleged, Republican voting strength to dilute through Eu, out Badham State. Juris. Statement O. T. 87-1818, D, No. Exh. 77a. Three Members of p. this Court dissented from the summary affirmance in Badham and would probable juris have noted (1989). diction. 488 U. S. 1024 congressional new districts.”35 The District

different Philadelphia dragon descending like a on from the “looms up throughout splitting west, towns and Mont- communities Furey alleges gomery and Berks Counties.”36 that the dis- “solely tricting plan created to effectuate the was interests” Assembly Republicans37 and relied General “ex- clusively principle partisan advantage” on maximum drawing plan,38 when “to the exclusion of all other crite- plan irregular The 2002 “is so on its face ria.”39 that it ra- tionally only an can be viewed effort... advance political party, regard of one without interests traditional redistricting principles any legitimate and without com- justification.”40 problem,” pelling Furey claims, “The legislature ignored that the “subordinated —indeed tra-—all redistricting principles legitimate ditional all bases for decisionmaking, governmental in order to favor those with political viewpoint plan “ignores one over another.”41 The redistrieting alleges, criteria,” all other traditional she “thus demonstrating partisanship nothing else—was the —and plan.”42 complaint behind the Because this rationale states judicially manageable adjudicat- a claim under a standard for gerrymandering ing partisan cases, I would reverse the pro- judgment of the District remand for Court further opinion. ceedings with this consistent candidly acknowledges legislatures plurality can remedy political gerrymandering fashion standards perfectly manageable legislatures and, indeed, that the Ante, have done so. If in Iowa and elsewhere n. 4. 135a. Statement App. to Juris. 36 Id,.,at 136a. 37 Id., at 142a.

38Id., at 143a.

39Id., at 140a. 40Id., 143a.

41Ibid.

42Id., at 135a. impose is found, a violation court could a of the Constitution remedy prob- patterned Thus, such statute. after judicially not that plurality’s view, in the there is no lem, manageable partisan ger- fix an standard to unconstitutional Judiciary ability rymander, lacks the but rather that legislature duty has determine when a state violated its govern impartially. obviously, identifying however, several standards for

Quite judges impermissible partisan influence available to who every the will to them. We could hold that have enforce justification; boundary must have a neutral we district could Banderrier; approach apply Justice Powell’s three-factor predominant apply the motivation standard we could fash- gerrymandering cases; ioned the Court in its racial or we approaches today by advocated could endorse either Breyer. and Justice What is clear Justice Souter unavailability judicially manageable it is not the today’s decision. It fail- is, instead, standards drives judicial even the most viola- ure of will to condemn blatant legislature’s duty govern tions of a fundamental state impartially.

Accordingly, respectfully I dissent. STEVENS,J., follows this

[Appendix opinion page.] J.

STEVENS,

OF

OPINION

TO

APPENDIX Ginsburg Souter, with whom

Justice Justice joins, dissenting. Constitution

The both formal and substantial guarantees voters. For 40 among we have years, equality recognized lines a into State must districts dividing pro- voting divisions with duce one one vote. equal populations: person, Sims, (1964). 377 U. Otherwise, S. Reynolds in a less vote district than carries more others populous clout. not, however, districts is

Creating unequally populous to skew results only way district lines. by setting The to draw a choice district line another, one al way, carries some save in a ways consequence politics, mythi cal State with voters of distributed in every political identity an absolutely gray uniformity. spectrum opportunity runs from into fractions, cracking group impotent pack its members into one district for the sake of ing marginaliz them in another. However districts be in ing equal may matter, as a formal aof vote cast population consequence can be or maximized, minimized Karcher v. 462 U. S. Daggett, 725, (1983), n. 6 and if unfairness is demon sufficiently strable, condemns it as equal protection guarantee denial of Bandemer, substantial Davis v. S.U. equality. 109, 129-134 (plurality opinion).

I to The notion assumed be of fairness denied in these cases has been as “each described in a State political group [hav- the to same chance elect of as its choice ing] representatives id., 124, other at and ‘fair any as a to political group,” “right ” id., and effective at 162 (Powell, concur- J., representation,’ in in Cf. Wells v. ring part dissenting part). Rockefel- ler, (1969) 394 (Harlan, J., (describ- U. S. dissenting) the “a structure which as need for will in fact ing as well to sentiments of the theory responsive community”). It is undeniable that understand such sophisticates political it,

fairness to how about see go destroying App. 134a, Juris. Statement it cannot be de- although possibly hard scribed with the of one one edge vote. The person, has of been translate these notions difficulty fairness into criteria, as workable distinct from mere for re- opportunities to make courts that viewing episodic judgments have things far, too the sources of in the gone facts that difficulty being some intent political gain when- advantage inescapable ever bodies devise district political some effect plan, supra, Wells, results from intent. at 554-555 (White, (“In course, dissenting) reality, J., is itself a districting in the sense gerrymandering represents complex blend of economic, and historical political, consider- regional, ations”). Thus, issue one of how much, much is too and we can no be more exact in a verbal test for too stating much than we be in can partisanship too much race defining consciousness when some is inevitable and legitimate. Vera, Bush v. 517 U. S. 1057-1062 J., (Souter, Instead of with a verbal dissenting). coming formula for up too much, then, Court’s must be to job clues, identify them, as can make we objective indicating partisan has reached an competition unfairness. extremity effect, that courts have been plurality says, trying to devise criteria for practical political gerrymandering without closer to work- nearly years, being any something able than we were when Davis was Ante, decided. at 281.1 I do While is true not this it as sound counsel enough, accept For I it that take we reason have despair. principal from theoretical admin- gone justiciability practical Davis cases is gerrymandering istrability plu- criterion of forbidden any rality’s specification gerry- must members mandering require showing had been shut out “essentially plaintiff’s politi- group g., Eu, e. Badham See, at 139. cal 478 U. process,” ante, the dissenters labor still in says today, And the vain plurality Breyer’s response, 292; post, JUSTICE I 368. join 1988) (ND court). 664, 670-671 Cal. F. Supp. (three-judge is, in a That order to avoid threshold for relief so low (let defeat alone almost electoral failure any to achieve pro- results) claim, would a portionate support gerrymandering Davis a demonstration of plurality such required perva- a sive devaluation over such of time as period to real raise out. Davis suggested that a doubt case could be made ever need to show even that plaintiffs might their efforts to deliberate, and been vote had register, 478 U. impeded. This standard, at 133. which it is difficult a to imagine a combined major party very burden meeting, demanding if have not been significant vagueness; appellants Davis to a able a test for violation, propose practical fault them less to than to our As belongs predecessors. it, now Judge Higginbotham recently put “[i]t painfully [Davis] clear that Justice concern that Powell’s offered a ‘“constitutional would-be green light” gerrymanderers’ Perry, Session has realized.” been 298 F. 2d Supp. curiam) (per 2004) (footnote (ED omitted) Tex. (quoting Davis, supra, (Powell, J., at 173 and dis- concurring part senting part)).

II this Court created the Since has no one else has problem been solve, able to it is us to make fresh start. There up did, it is time we voices good many saying high Davis, since the increasing years efficiency partisan the democratic has redistricting damaged process degree g., E. that our Issa- predecessors only began imagine. charoff, Political Harv. Cartels, Gerrymandering (2002) (The L. Rev. of incumbent entrench- 593, 624 “pattern ment has for more worse the computer gotten technology Karlan, The has Fire exquisite improved”); gerrymandering Census, Next After the 2000 Time: Reapportionment Stan. L. data, Rev. census (“Finer-grained better methods, more predictive powerful computers allow for sophisticated equipopulous gerryman- increasingly

ders”); Principled Racial Limitations on and Partisan Pildes, (1997)(“Recent Redistricting, 2553-2554 Yale L. J. astonishing microscopic detail the cases now document up precision with carve individual which redistricters can precincts between districts with confi- and distribute them partisan concerning consequences”). the racial dence Perspective, Geographer’s Morrill, in Political also A See Gerrymandering (B. ed. the 213-214 Grofman Courts 1990) produce (noting “high propor- gerrymandering can seats”); very of safe for Bernard as tions Brief Grofman et al. seats). (decline competitive Wells, Curiae 5-8 of Cf. Amici (“A (Harlan, dissenting) computer may J., 394 U. at 551 totally grind popu- out district lines which can frustrate the issues”). overwhelming number critical lar will on an of preserve holding I would Davis’s therefore gerrymandering justiciable issue, but start is a otherwise adopt political gerrymandering I a test analo- anew. would summary judgment gous to crafted McDon- the standard (1973), Corp. calling Douglas Green, nell 411 U. S. 792 prima plaintiff satisfy action, of a facie cause of a elements only opportunity point at the would have the which State plaintiff’s supporting case, to rebut but to the evidence justification districting choices, offer an for the affirmative My assuming proof plaintiff’s allegations. even of devising judgment own is that we would have better luck prima as much as facie if we concentrated a workable case suspect in- possible districts characteristics of individual on patterns. a view It is not that statewide statewide stead point districting important; less usual somehow greatest gerrymandering, number all, is to control after be able we would But, seen, of seats overall. as will be readily existing what defined more on some law when we call suspect I conceive now would district level, challenge claims itself function of of a statewide Finally, illegitimately drawn. individual districts prob- simplicity, would I stick same interest threshold districts; if we could not devise lems single-member these, scheme for claims about we dealing workable have to multimem- complications would forget posed districts. ber

Ill A claim on a district, For based specific single-member I would the make out a facie require plaintiff case prima First, five with elements. the resident would iden- plaintiff a cohesive to which he which political group tify belonged, be a in major would as this case in normally and party, Davis. There no reason in however, is to rule out principle, (which claimant from a minor a political if it party might, showed the become of strength, target vigorous hostility State) one or both in from from a parties different major but coherent whose members politically group engaged bloc as a labor union do. The voting, large might point that it must make sense to of a candidate speak group’s choice, to do in case of a or small easy large more when difficult is not de- party, though organization fined as such.2 by politics

Second, a would need to show that the district of plaintiff Hays, States v. United his residence, see 515 737 U. S. in a residence district (requiring challenged standing), 2The plurality says easy it group, would to define such a because “a person’s politics is rarely never as readily perma discernible —and race,” ante, nently anytime discernible —as a at 287. But person’s politi occur, cal has been shown to least gerrymandering imply evidence must at that- down, sat defendants themselves identified the relevant groups, set out the vote of one concentrate and dilute that of the others. plaintiff evidence, If a has the a court can what figure out was on. going In major-party plaintiff I not see any problem permitting cases do with to allege that Republican, he is a example, and that registered state legislature through set out to minimize number gerrymandering serve, Republicans elected. If references will not registration will plaintiff need partisan to show the criteria for affiliation employed by the defendants in challenged districting process. princi districting heed to those traditional or no little

paid conti straightforwardly: can be shown disregard whose ples subdivisions, for political respect compactness, guity, moun rivers and like features conformity geographic relevant Because such considerations already tains. equality, absolute population deviations from small justifying and because Karcher, 740, 462 U. compactness majority- relevant to demonstrating possible particular Act Johnson under the Rights districts minority Voting no there is (1994), 512 U. Grandy, v . De S. within would fall a test on these standards doubt that relying judicial competence. is at first least

Indeed, blush although compactness be meas- can these likely principles yield precision, ured terms of dispersion, perimeter, quantitatively would ratios, and the standards development population Niemi, thus be Pildes & See generally Expressive possible. Districts,” Harms, “Bizarre and. Rights: Evaluating Voting Reno, After Election-District Mich. Shaw Appearances Vera, S., at (1993); see also Bush v. L. Rev. 483 that such for- J., measuring dissenting) (suggesting (Souter, Reno, mulas have to Shaw v. 509 salvage been might applied (1993)).3 now to U. S. It not necessary say exactly Niemi, measures, Pildes and include by Those as defined Professors dispersion, the area of the the ratio of the area of the district to smallest 554-555; perime district, Rev., 92 Mich. at circle that circumscribes the L. ter, the of the to the area of the circle whose the of area district ratio id., 555-556; perimeter, diameter the area’s at and equals length the population, the population population the ratio the district’s to con (or by the district figure tained the convex that encloses minimum area), id., 556-557, and n. 206. The measure population “rubber-band” circle in the denomina circumscribing can also be taken district’s using the Id., Third Polsby Popper, & Criterion: Com tor. at 557. See also Safeguard Against Gerrymandering, Partisan pactness aas Procedural 301,339-351 (discussing quantitative Yale L. & Rev. measures Pol’y superior as anti- compactness, favoring perimeter the measure Gerryman Schwartzberg, Reapportionment, purposes); gerrymandering (1966) (dis- ders, “Compactness,” 50 Minn. L. Rev. the Notion of balance a district court would a how on one of good showing another, indices a on for that these sort against poor showing case detail best out worked case. need to the would Third, establish correla- plaintiff specific the tions between district’s deviations from dis- traditional and the distribution of principles tricting population For one of the his to districts which group. example, appel- in this lants most case is which District object strongly “looms like a on dragon they say descending Philadelphia west, from the towns and communities splitting up through- out and Berks Counties.” to State- Juris. Montgomery App. To ment 136a. make claim stick, their would need to they on the Draconian protuberances point specific shape Democrats, or reach out include fissures in it that squirm from would away They need to show Republicans.

when towns and communities were Democrats tended split, to fall one side and on the on other. Republicans Although some would no doubt any counterexamples present a whole need would complex plan, plaintiff’s showing for, reasonable if an inference not provide support compel, that the district took it did because of the distribu- shape tion of the That would but com- plaintiff’s begin, group. the defendant had chosen case plete, plaintiff’s (drawn a either to in order include district pack group (drawn a of the or to crack it number high uselessly group) few), vote so as to include methods of ordinary fatally Ante, dilution in district single-member systems.

n. 7. a

Fourth, would need to court plaintiff present his residence, district one in which hypothetical including (in lower proportion was plaintiff’s group packing claim) (in one) which same at the higher cracking time deviated less from traditional than districting principles Gingles, Thornburg the actual district. v. Cf. 478 S.U. cussing would a the legislation applied that have proposed variant measure). perimeter

350 a similar to demonstrate that showing

50 (requiring voters’ district minority a multimember “responsible candidates”). This to elect preferred] hypo- [their inability to claim would allow the credibly district plaintiff thetical traditional from that the deviations districting principles with, but also the correlated caused were not by, pack- only his dis- or Drawing hypothetical ing cracking group. course, would, involve at least trict necessarily redrawing and a district,4 would have to show one contiguous plaintiff be done to traditional that this could subject districting prin- another) (or without his cracking ciples packing group than in the district worse being challenged. would to and have show

Fifth, finally, plaintiff to intentionally defendants acted manipulate shape Washing- or crack his See district in order pack group. Davis, (1976). ton v. In 426 S. 229 claims U. substantiating a under a devised plan political gerrymandering single should hard, intent not be once the major proving party, cause) (correlation and elements are estab- third and fourth not disinterested or char- lished, being politically politicians Bandemer, naive. Davis v. acteristically (“[W]e á redis- think it most whenever likely legislature for the will know the tricts, those legislation responsible districts”). would, of the new I likely political composition of intent in a case however, showing treat any major-party unless entire were as to count legislature too equivocal (or the dominant legisla- controlled by party governor’s tive were vetoproof).5 party dis redrawing noncontiguous involve other necessarily It would to ask a tricts, remedy for such unless permit plaintiff I would not See infra, case districts. prima multiple

he made facie first out a at 353. enough Amici JoAnn suggest political party strong et al. Erfer exer to a firm that approval analogous the other’s without redistrict market, exercise ability over cises control monopolistic trigger constitutional “heightened should therefore control such unilateral Adams, (1953), Terry S. 345 U. (citing Brief 18-19 scrutiny.” case). Issacharoff, Gerrymandering also primary Jaybird Texas

351 group major not a party, proof If affected were in- of admittedly, possible could, tent It be difficult. would be might legislature plaintiff’s had group even have naturally plaintiff and a mind, would have a time hard show- requisite ing plan produced by bipartisan intent behind commission.

B plaintiff got A who would this far have shown that his intentionally having ignored State acted dilute his vote, reasonable alternatives with consistent traditional district- principles. ing I would then shift the burden to the defend- justify by objectives ants to their decision reference to other partisan They than advantage. naked might by show rebut- districting objectives tal evidence that could not be served by plaintiff’s hypothetical by district better than the dis- they might affirmatively drawn, trict as legiti- establish objectives by mate better served the lines drawn than plaintiff’s hypothetical. might, posit example, The State the need to avoid racial vote Vera, S., dilution. Cf. Bush v. U. at 990 517 (O’Connor, § concurring) (compliance 2 of Voting Rights with Act J., interest). compelling plead of might 1965 is a state It one person, compatible gerrymander- vote, one a standard ing places perhaps but in some unattainable without some lopsided might object proportions. adopt The State proportional representation among parties political its Cummings, districting process. Gaffney through its 412 (1973);6 U. Grandy, S. cf. Johnson v. De 735, 754 512 (2002); Pildes, Cartels, Political 116 Harv. L. Rev. 593 Issacharoff & Politics Process, as Markets: of the Democratic Stan. L. Rev. Lockups Partisan (1998). is an intriguing may prove to antitrust one that analogy fruitful, this about a point I do not embrace it at out of caution though to politics. wholesale transfer from economics conceptual 6Some Gaffney failing commentators have criticized itself for to account for the harm to the bipartisan political gerrymandering process. g., E. Cartels, supra, Issacharoff, Political (“Gaffney illustrates problem model any use of a discrimination unmoored to positive process”). Gaffney law, today’s account of the electoral settled and for not support finding the circumstances did (totality effective groups constitute^] dilution where “minority vote sub- of state Senate districts in a number majorities voting in the share population”).7 to their stantially proportional a or for time not, however, This place comprehensive The a State might present. list of legitimate objectives the Constitution should not pet- that simply here point it is exclusive, as traditional rify districting objectives that would be to required explain to the State say enough were itself, whatever reasons it to demonstrate that gave an more a mere old-fashioned gerrymander. than pretext approval bipartisan take as its of gerrymanders, I would purposes given may be protection. The goal plurality with their associated of incumbent correct, ante, 297-298, propose objec- at the test I could catch more that accept- rejected protection if gerrymanders tionable we incumbent as an I all purpose districting. wary lumping able of But am aimed measures I point, gain at at this and think protection together incumbent we would better of what if we upon experience a sense to do waited particular incumbency of- assessing protection district courts efforts responding prima fered the States to facie cases. 7 plurality’s charge any judicial It is worth a moment to address the that remedy gerrymandering pro to necessarily right assumes a Ante, (and portional (“Deny appellants may at 288 it representation. (or do), least upon principle groups standard rests [their] political-action right representation”). a groups) proportional have agree guaran I with this earlier that the Constitution Court’s statements Bandemer, See Davis v. 478 right proportional representation. tees no Chavis, Whitcomb v. (plurality opinion) (citing U. S. 403 Regester, (1973)). and White (1971), not It does U. S. U. S. permits every follow that the state action intended achieve Constitution any rep representation. “Proportional extreme form of disproportionate guar used to usually procedural resentation” to a set of mechanisms refers antee, in the precision, political party’s with more less seats the vote. legislature generally will be to its share of proportionate Karlan, & R. Issacharoff, Pildes, Democracy P. 1089-1172 S. The Law (rev. 2002) systems single-member 2d than the (discussing voting ed. other district). neither mecha requires adopt The Constitution a State to those goal of to its vote. giving party proportionate nisms nor their seats

c attempt I claim, for a an ambitious As statewide would not experience the benefit individual without definition I claims, for now would limit consideration district upon built claim to one number of district- a statewide challenge district-specific specific ones. Each successful contiguous necessarily redrawing one would entail at least claims, sur- district, and the more more successful rounding point, a certain districts to redefined. At ripples boundary, no would the state and would reach any longer make for a court consider sense district piecemeal. problems

D says my proposed plurality standard would unworkability. problem says, It solve the essential determining ger problem “[i]t [the] [of when does not solve rymandering original far] gone break down the has too to question but unanswerable . four more discrete . . into questions.” equally Ante, at It is unanswerable 296-297. large sense, however, to break down a intracta common and way get fragments on into to a handle ble issue discrete as a only larger propose are not trac one, the the elements I and already very judges theory, subjects table in the but example, plurality practice. asks, with in The deal [is] “[w]hat often be when, a as will ... lower court to do but case, the the district to traditional criteria adheres some already question arises Ante, not others?” at 296. This §2 Voting Rights 1965, and the cases under Act of of the difficulty of an not had same sort district courts have the swering applying they Davis v. Bandemer it as the have Supp. plurality. e.g., 2d Hamrick, 155 F. See, Johnson v. 2001) (ND (noncontiguity plaintiff’s of 1355, 1362-1363 a Ga. § Gingles against munici fatal to 2 claim a was not a districts city’s pal districting are boundaries scheme because “the por- rough asymmetrical non-contiguous [and] . . . the by districts] separated unincorpo- proposed [of are the tións relatively near are the districts to which areas and rated enquiries proposing I joined”). not, The am are they are they edged be, I wish could but neither sure, as hard as subjectivity degree they a of inconsistent with the have do judicial function. says my plurality is also standard destined to fail enough given precise I a account

because have of prevent. Ante, I unfairness would at 297-298. extreme objection expression plu- of But this more the reliable rality’s discouragement description own than the of an Achil- my partisan gerry- suggestion. The harm les heel in from (as 349-350) supra, mandering I said, have at species point gerrymander vote dilution: is to by manipulating capture district seats lines to diminish the weight party’s other votes in To elections. devise a remedy judicial necessary harm, however, for that it is not adopt theory furnishing precise fairness, full-blown divergence caused from the measure harm ideal in each agree gerrymandering It case. is sufficient instead plurality dispute; unfair, does not is, indeed, as the to observe gerrymanderer, plu- methods of the traditional which rality adopt summarizes, ante, at 274-276; a test preventing detecting the use of those methods, aimed unnecessary those I mine is. If which, think, methods gerrymandering, plurality implies, ante, to effective why they explain popu- it is hard to 297-298, have been so ages through politics. My lar American down test party power leave substantial room for a would no doubt advantage through districting proc- its control of to seek opportunism only way prevent all ess; to would be to districting wholly legislative from I control, remove which say requires. prepared to the Constitution But that am not impossible identify for does it courts to at least not make gerrymandering, remedy. provide the worst cases of my approach plurality show is would can most the Scalia, The of Law as a Law catch them Rule not all. Cf. (“To 1175,1178 Rules, what 56 U. achieve Chi. L. Rev. is, involved, from the substantive policies standpoint it is of a nice —but one number of answer is ‘perfect’ just values”). competing

IV In case, this counsel drafting appellants’ complaint on the had naturally sat- proceeded assumption they the Davis v. Bandemer or some revision in isfy plurality, Shaw, I but not facie case have in mind. light prima Richard and Vieth make claims, Norma Jean statewide only for which claim district Susan single brought Furey insufficient As for claim, own provides grounding. Furey’s her short, fall on the allegations example, feasibility an alternative own, district her as I would re- superior well be But she able what I quire. would might allege if leave to I amend. would her require, given grant leave, and therefore would vacate the of the Dis- judgment trict Court and remand for further From the proceedings. Court’s her that I denying judgment respect- opportunity, dissent. fully

Justice Breyer, dissenting.

The use of dis- considerations purely political drawing trict boundaries is not a that, evil” for lack of “necessary standards, the Constitution manageable judicially inevitably often, Rather, tolerate. to secure pure politics helps must But democratic constitutionally objectives. important sometimes does not. Sometimes political “gerry- purely will fail to advance democratic ob- mandering” any plausible while serious jective simultaneously threatening democratic harm. so, And sometimes when that courts can identify an violation Be- equal protection remedy. provide (but cause the claim could have plaintiffs yet proved) Dis- here, that such circumstances exist I reverse the would trict their Court’s dismissal complaint.

356 directly most difficult issue on the plurality focuses yea, five-part “[n]o even a says, It us. before test — what he is possibly one knows be successful unless test —can original). (emphasis in That is Ante, at testing 297 for.” in which of circumstances I describe set Thus, shall true. districting political criteria could conflict purely the use requirements— constitutionally democratic mandated for.” I shall then courts should “test that the circumstances applicable judi- possible to find explain why I believe I cially manageable And shall illustrate those standards. standards.

I People,” principle. “We the I with a fundamental start ” established] “ordain[ed] who American Constitu- gov- sought protect a tion, and to workable form of to create “‘principles, structure, its and whole ernment ” basically Wood, The Creation mass,’ democratic. G. p. (quoting Republic, W. 1776-1787, 595 American Excellency His Murray, Inscribed to John Sketches, Political (1787)). g., Meiklejohn, Speech also, e. A. Free 5 Adams (1948). In to Self-Government 14-15 and Its Relation people, to 300 million workable modern Nation close democracy foresees must more that the Constitution mean legislators guaranteed opportunity represent- to elect than a Reynolds Sims, ing populous equally electoral districts. v. (1964); Kirkpatrick Preisler, v. 394 U. S. S. (1969); Daggett, Karcher U. S. 526, 530-531 (1983). transforming also be method There must government. majority effective will into political parties explained play a nec- has This Court they At a essary minimum, role in that transformation. help responsibility circumstances, assign current voters through thereby enabling their indi- voters, votes for those express satisfaction dissatisfaction candidates, to vidual quo. Those voters vote can with the status either quo “throw out.” or vote to rascals support that status generally Comm’n, McConnell v. Federal See Election (2003); Party 93, Jones, U. S. Democratic California (2000); Republican 567, 574 530 U. S. Colorado Federal Cam paign Comm. v. Comm’n, Federal Election 518 U. S. (1996). party-based political A system 615-616 that satisfies encourages responsibility. this minimal condition democratic gov It facilitates transformation of a the voters’ will into ernment that reflects that will.

Why princi- I elementary do refer to these constitutional ples? they I help identify Because believe can courts one abuse at least issue in this case. To how understand begin by asking why so, that is one should single-member why electoral districts are the norm, does Constitution membership legislatures not insist that the better reflect different views groups held different of voters. History, part course, answer, is but it not tell does story. the entire The also answer that lies the fact singlé-member-district system helps to ensure certain demo- objectives many representative” cratic (i. than better “more systems. proportional) e., single- electoral course, Of only parties member districts mean that with candidates who past post” legislators. finish “first will elect That fact party majority means in turn a bare that of votes or plurality large legislative even a of votes will often obtain a majority, parties. perhaps freezing single- out smaller But thereby member districts diminish the need for coalition governments. And that makes it easier for fact voters to identify government party responsible which decision- (and out), making which to throw while rascals simultane- ously greater legislative stability. providing Mer- Cf. C. shon, Coalition Theories and Italian Costs Coalition: (1996) (noting Rev. 534 Governments, 90 Am. Pol. Sci. systems proportional from 1946 to under “almost no government stayed years, [Italian] more in office than a few months”); only many governments collapsed few after Proportional Representation, Representation and Hermens, Electoral Issues and System: an Alternatives Choosing 1984) (A. & eds. B. Grofman 15, (describing Lijphart had the hallmark which become paralysis “political under representation). Fourth proportional Republic” Electoral Best Which System? also Duverger, at 31, 32 Electoral an System, supra, Choosing (arguing the citizens from ex- systems “preven[tj proportional team,” choice for a governmental a clear and that pressing voters allow “choose systems govern- nonproportional decisions”). make This is not ments with the capacity districts are is sim- preferable; say single-member and more- single-member-district systems ply say reflect different conclu- systems directly-representational balance of different sions about elements of proper workable democratic government. norm, however,

If districts are the then single-member will considerations an likely play important, political in In role district boundaries. drawing part, proper, unlike observers, that is because nor nonpartisan politicians, “the understand how location of districts” mally shape “the of the determine area.” political complexion Gaffney (1973). It is because 735, 753 U. S. Cummings, precisely are best able to the effects boundary politicians predict make some districts usually changes they design In Foxes See, sense. e. Defense political Persily, g., Henhouses: The Case for Judicial Guarding Acquiescence L. 116 Harv. Rev. Incumbent-Protecting Gerrymanders, (2002) 678, and nn. 94-95 the author’s experience (recounting drawer, in which the a neutral court-appointed boundary from he draw moved an uninhabited helped swamp plan en another, one district thereby inadvertently disrupting to the vironmental that were politician projects important district). former representing swamp’s the role More important politi- purposes, present mathematical fact. cal considerations reflects a surprising con- with a large Given state fairly fairly large population perfectly assigned delegation, districts so as to gressional politics a small shift in respect would translate random say Republican to a shift from 49% 51% sentiment, political legisla- makeup shift in the into a seismic Republican, say Republican to 100% Demo- delegation, from 100% tive Mandatory Modeling Altman, the Effect of M. crat. Gerrymanders, 17 Pol. Ge- Compactness on Partisan District (1998) (suggesting state that, where the ography randomly compact enough, large even selected population party politicians no from the generally elect will districts statewide). Any exaggeration such fewer votes wins legislative wiping changes virtually out tiny electoral — minority party itself seem representation of —would highly undemocratic. single-member resulting districts need

Given surprising “traditional” it is not boundaries, nonrandom politically rarely, ever, if been districting principles have memory, Dem because, in recent Rather, neutral. Repub while cities ocrats often been concentrated have some suburbs often been concentrated licans have have geographically drawn boundaries areas, times rural (plurality ante, at 290 “pac[k]” former. See tended to 109, 159 Bandemer, 478 opinion) (citing U. S. Davis v. Lowenstein & judgment)); concurring in J., (O’Connor, Districting in the Pub Steinberg, Legislative The Quest Illusory? Rev. L. lic Elusive or UCLA Interest: “ up to live not ... do (explaining ‘formal’ criteria that the ‘neutral’”). Neighborhood billing ‘fair’ or their as advance Jew seeking group Irish, to community-based boundaries, or All same. voters, did the often African-American ish, or knowledge their politicians, who use well this is known advan partisan criteria “neutral” about the effects of the the so, it not maps. And were drawing tage when electoral extraordi their have worked would iron laws of mathematics nary volatility-enhancing will. historically say that based bound- traditional

This is to Rather, “politics free.” be, not not, and should aries are represent compromises princi- of series of those boundaries representation example, ple among close of, the virtues — “op- identifying “government” ease and views, voter of stability They also government. position” parties, and among uneasy represent tradition, truce, sanctioned an advantage. seeking political parties different underlying said, I consid- As have reference back these explain political helps why legislature’s use of erations ordinarily boundary-drawing does not violate considerations Equal lies Protection The reason Constitution’s Clause. difficulty identifying finding simply in the abuse or an judicial remedy. appropriate The reason is more fundamen- Ordinarily, simply purely is no The use tal: there abuse. boundary-drawing political factors, even where harmful to party, justifi- of one members will often nonetheless find ends, cation in other democratic such maintain- desirable ing relatively legislatures minority party stable which a significant representation. retains

II help identify At the time, same these considerations can purely political least one where circumstance use boundary-drawing to a re- serious, can amount factors unjustified namely, use of fac- mediable, abuse, minority power. By I tors to entrench a entrenchment party enjoys only minority mean a situation in which support among populace has nonetheless contrived to legislative power. By unjustified take, hold, entrench- minority’s power purely ment I on mean that the hold partisan manipulation result not other factors. These (albeit “justified” tempo- “other” factors could lead to rary) minority happenstance, include sheer entrenchment major parties, unique than two existence of more representational requirements of certain bod- constitutional (geographic, Senate, as the such reliance on ies traditional etc.) districting interest, of communities criteria. unjustified harm

The democratic entrenchment is obvi- As has respect popularly ous. this Court written in districts: based electoral society

“Logically, ostensibly grounded in a repre- on government, it sentative would seem a reasonable that majority people majority a State could a elect legislators. differently, of that State’s To conclude minority legislative to sanction bodies, control of state appear deny majority rights would way far in surpasses any possible minority rights denial of might thought legisla- otherwise be to result. Since responsible enacting are tures laws which citi- all governed, they zens are to be should be bodies which collectively responsive popular Reyn- are to the will.” olds, 377 U. at 565. unjustified place,

Where entrenchment takes voters find responsible far govern- more difficult to remove those for a they ment want; do not these democratic values dishonored. legislative stability justify need cannot entrench- stability compatible system

ment, for with a which support implies majority power. loss of a loss of The need minority representation legislature to secure in the cannot justify minority party representation is entrenchment, for compatible system minority also in which the loss support representation. implies Constitutionally a loss of specified principles representation, such as that of two per justify Senators State, cannot entrenchment where legislative body Representatives House of or similar state justification is at issue. other Unless some can be found particular political gerrymandering circumstances, so minority party power entrenches violates basic demo- countervailing justification. cratic norms lacks For this gerrymandering does, not, political or does reason, whether gerrymandering in instances, other the Constitution violate to entrenchment amounts an abuse that violates that leads to Equal Protection Clause. the Constitution’s

Ill prevent to not intervene often the kind Courts need described, those a abuse I have because harmed constitute majority, majority normally po- political can work its gerrymandered improperly a State has litical will. Where legislative congressional majority’s to districts disad- or majority vantage, should be able elect to officials may help particularly statewide the Governor—who races— districting majority’s harm that has caused the undo the districting party, if And in the next round not sooner. gerrymandered congressional improperly where a State has power Congress retains to revise districts, the State’s districting Const., I, §4; determinations. See S. Art. opinion) (discussing history (plurality ante, at 275-277 partisan Congress’ “power manipulation check of the elec- States”). process tion perhaps tiring po- States,

Moreover, voters some boundary-drawing rivalry, procedural have litical found a so- confiding to a that is the task commission limited lution, may partisan base con- the extent to which districts on Leg- According to the National Conference of cerns. State give currently authority “first and final 12 States islatures, redistricting group [state] to a other legislative than the Legislatures, legislature.” Conference National State Redistricting Legisla- Alternatives Commissions and (2004), Conducting Redistricting http:// available at ture www.ncsl.org/programs/legman/Redistrict/Com&alter.htm (all Mar. 29,2004, as visited and available Internet materials file). A number com- of States use a in Clerk of Court’s case congressional redistricting: Arizona, Hawaii, mission Jersey, Washington, Indiana Montana, New Idaho, if commission cannot using legislature plan pass Iowa to consider requiring district-drawing body Ibid.; Iowa General data. Assembly, Legislative (Dec. Bureau, Guide to Service Legislative Redistricting 2000), available at http://www.legis.state.ia.us/Central/LSB/ Indeed, Guides/redist.htm. where state have governments act, been “an informed, unable mili- unwilling civically Carr, Baker electorate,” tant 369 U. S.

(Frankfurter, J., has taken matters occasionally dissenting), into its own hands, ballot initiatives or referendums. through voters, Arizona 106, which example, Proposition passed amended State’s Constitution and created an independ- the. ent draw commission to redistrieting legislative congres- (West 2001). sional Const., § districts. Ariz. Art. 1 pt. reforms Such borrow from the used other coun- systems g., e. tries See, districts. utilizing single-member Adminis- tration and Cost of Elections Delimitation Project, Boundary (hereinafter ACE in the Canadian Project), Representation Parliament, available at http://www.aceproject.org/main/ english/bd/bdy_ca.htm Canada’s independent (describing commissions, boundary which draft based on maps equality communities of population, interest, and fac- geographic tors); ACE The United Redistribution Project, Kingdom Process, available at http://www.aceproject.org/main/english/ the United bd/bdy_gb.htm (describing Kingdom’s independ- ent commissions, boundary which make recommendations Parliament after consultation with & G. public); Gudgin P. Seats, Votes, Taylor, and the of Elec- Spatial Organisation tions 8 bound- the United Kingdom’s (noting ary in a commissions are neutral party, “explicitly political sense”).

But we on a cannot count severely gerrymandered, always Ban itself a legislature to find and remedy. implement demer, 126. that controls the S.,U. The party process has no incentive to it. And the advantages political change of a ever become the future. gerrymander may greater technology computer allows the availability enhanced

The target ways individual boundaries parties to redraw victory carving out but homes, safe slim neighborhoods and districts, with risk number of little margins maximum in the Handley, A margins generally thin. See cutting too their Technology, Redistricting Tools and to 2000 Guide Redistricting 2000 Data and Y2K Problem: Census Real (N. 2000); Persily The Fire Next Karlan, ed. Technology Census, the 2000 50 Stan. Reapportionment After Time: (1998); (Souter, ante, 345-346 dissent J., 731, 736 L. Rev. every years, By redrawing rather than ing). districts might preserve years, party its advan every a notwithstanding population in the tages shifts State. The technology precise map-drawing increasingly combination frequent map drawing party increasingly means that only gerrymander bring may about that is not be able to impossible dislodge. virtually Thus, court ac precise, but may prove necessary. tion prove capable of necessary, court should find-

When developed remedy. ing have district- appropriate Courts an g., Smith, Branch v. See, e. ing remedies in other cases. injunction (affirming of the District Court’s U. S. 254 redistricting plan its own and order that use of state court’s plan precleared under the could be plan until a state be used 1965); (upholding Karcher, 462 725 Voting Rights of U. S. Act congressional reappor- holding that a the District Court’s unconstitutional); Reynolds, S.,U. 377 plan was tionment ordering actions in (upholding District Court’s 586-587 leg- both of the state reapportionment of houses into effect a islature). Judging The Elu- Issacharoff, Politics: also Fairness, Texas of Political for Review Judicial sive Quest (1993) (reporting nn. 227-233 1688-1690, and L. Rev. court- census, were 13 there of the 1980 that, in the wake plans redistricting, that the congressional plans for ordered legislatures re- rejected to state and returned courts 8 state senate plans, state senate drafting, 7 court-ordered sent back to the state rejected plans legislatures, state house sent court-ordered and 9 state house plans, plans that, for further which meant back action —all of legislative § aside the of preelearance Voting leaving provisions Act of about one-third of all was Rights redistricting either done federal courts’ by courts under directly cases)). if the dan- (citing Moreover, injunctive authority a inadvertent favoritism too great, gers prove solution, such as the use of a balanced procedural politically commission, may boundary-drawing prove possible.

The bottom line is that courts should be able to identify the un- evil, one presence important gerrymandering justified a power political party entrenching voters have should be able to rejected. They separate abuse of considera- unjustified partisan boundary-drawing tions to achieve that end from their more ordinary justi- fied use. And should able to they design remedy extreme cases.

IV I do not claim that identification problem sep- aration is solved, in extreme But even instances. easily courts can number of indicia of abuse. identify strong entrenchment, of actual while presence unjus- always occurrence), tified such a a chance (being sign, perhaps when the use particularly by partisan accompanied criteria in the that Justice boundary-drawing way Stevens e., i. describes, crite- a use that both from traditional departs ria and achieve cannot be other than efforts to explained of cir- partisan Below, I set forth several sets advantage. cumstances that I have in mind. out indicia of abuse lay The scenarios fall The more continuum: along permanently becomes, entrenched the hold on less minority’s power evidence in courts will need that the ger- minority engaged to achieve the result. rymandering desired Consider, the sets circumstances. example, following First, the has to redraw suppose legislature proceeded ordinary ways, to but en- what seem be in

boundaries (a) g., legisla- has obvious. E. become trenchment harm district more than once has not redrawn boundaries ture (b) 10-year period; no de- the traditional radical within alleged; districting parture criteria is but from traditional (as (c) by actually majority party the votes cast measured identify who as all candidates themselves members congres- elections; party e., i. in the relevant set map being challenged) congressional if a sional elections majority legisla- failed obtain a relevant has twice (d) explained elections; the failure tive seats cannot be by ways. multiple parties or in neutral the existence other sup- my be view, In these circumstances would sufficient to port unconstitutional a claim of entrenchment. point suppose plaintiffs more

Second, could serious (a) redistricting g., legisla- departures norms. E. from not redrawn district boundaries more than once ture has (b) 10-year period; boundary- but the traditional within radically depart previous drawing from or tradi- criteria (c) justified departure cannot be or ex- criteria; tional by plained to an than reference effort obtain other (d) (as advantage; majority party partisan political de- above) majority has once obtain a of the rele- fined failed (which challenged using map fact in election vant seats parties multiple explained the existence of cannot ways). add These circumstances could neutral also other up gerrymandering. to unconstitutional legislature clearly departs suppose from

Third, districting ordinary norms, harm, but the entrenchment yet E.g., seriously threatened, has occurred. while (a) legislature has district more than redrawn boundaries 10-year period— census-related within the traditional once an a court that struck either, here, as at the behest down Pennsylvania, plan see Vieth v. unlawful, initial 2002) curiam) (MD (per (finding that Supp. Pa. 2d 672 F. redistricting plan Pennsylvania’s violated the one- first (b) mandate), or of its accord; one-vote own the person, criteria from depart radically boundary-drawing previous (c) criteria; traditional boundary-drawing strong, objective, statistical a unrefuted evidence demonstrates party a vote the with within all State minority popular likelihood will obtain of the seats the relevant majority (d) the of tradi- representative delegation; jettisoning cannot tional criteria or justified districting explained other than reference to an effort obtain partisan politi- mind, cal To such circumstances could also advantage. my claim, because the of redistrict- support presence midcycle raises a fair reason, inference that mach- ing, any partisan inations role played major map-drawing process. such Where an inference is statistical evi- accompanied by dence entrenchment will be the result, a court likely conclude crosses the line we may constitutional map are describing.

The similar, of these, presence circumstances —where the risk of is demonstrated, entrenchment where partisan render considerations traditional com- district-drawing irrelevant, no where than other promises justification party can be to me found —seem extreme to set advantage enough aoff alarm. The of constitutional risk harm to basic demo- cratic identification is serious; and reme- principle possible; dies can be found.

V forth sets several criticisms of plurality my approach. ante, Some of those criticisms are overstated. at Compare always is a neutral (“[0]f course there [of explanation time-honored of in- criterion only gerrymandering] —if Brief for cumbent with Appellants protection”), (pointing of efforts to an incumbent examples gerrymander of office a new member out and elect opposition party ante, “the controlling compare party); (complaining statewide”), difficulties strength assessing partisan supra, 366 (identifying “majority party” simply by who all candidates cast for votes “the up actually

adding in the relevant of that as members party themselves identify elections”). set of Compare involve judgments. criticisms differing

Other unjustified ante, at 299 about (complaining vagueness unjusti- means,” and of machination, that “whatever supra, (detailed 360-361 discus- entrenchment), with at fied Sims); Reynolds ante, sion “justified” compare too with costs of intervention judicial high), (finding supra, to ensure costs warranted major- 364-365 (finding rule). ity that warrants a more

But makes one criticism plurality elaborate “that the mere that It observes fact response. these four come with three different stand- dissenters up in Bande- different the two ards —all them from proposed mer and the one here proposed by appellants goes long — that no there is discern- way establishing constitutionally Ante, ible at 292. standard.”

Does it? The recommend sets dissenting opinions standards differ in certain a ma- that Members respects. well seek to reconcile such But differences. jority might dissenters instead believe more thorough, might will statements specific reasoning accompanies separate lead stimulate further And discussion could discussion. law, of the ma- here, in the one member change where, as to re- justiciability, jority, plurality disagreeing ante, at 311- mains search of standards. appropriate J., concurring judgment). (Kennedy, VI us, In the case is a likelihood before there strong cir- could be amended assert plaintiffs’ readily complaint set cumstances consistent with I have forth as those appro- I would reason, For that intervention. priate judicial I from the authorize the dissent plaintiffs proceed; determination. majority’s contrary notes a standard that if only subsidiary of that. analysis My as classification, how an otherwise could show permissible could we conclude burdens rights, representational applied, a evidence states claim under provable appellants’ Amendment standard. Fourteenth in the briefs and at relied Though argument appellants source sub- on Protection Clause of their Equal relief, stantive and as basis I note right in this case also a violation of First alleged complaint 48; Amendment See Amended Juris. ¶ rights. Complaint 145a. The First Amendment be the more Statement may relevant in future constitutional cases that provision allege all, unconstitutional After these partisan gerrymandering. involve the First Amendment interest not bur- allegations because in. citizens of their dening penalizing participation their electoral their association process, voting history, or their views. political party, expression political See Elrod v. Burns, 427 U. S. 347 opinion). (plurality Under First Amendment those burdens general principles in other contexts are unconstitutional absent a compelling id., interest. 362. de- government “Representative unit mocracy populous governance any unimaginable to band of citizens without the ability together promoting candidates who the electorate their espouse among Party Jones, Democratic views.” U. S. California (2000). show, As these First Amend- 567, 574 precedents where a State enacts a law has the ment concerns arise of voters or their and effect of subjecting group purpose In treatment reason of their views. to disfavored party means that gerrymandering, context partisan arise where First Amendment concerns an apportionment of voters’ has the and effect burdening group purpose representational rights. there no for the First The place plurality suggests ante, Amendment in this area. See 294. implication

Case Details

Case Name: Vieth v. Jubelirer

Court Name: Supreme Court of the United States

Date Published: Apr 28, 2004

Citation: 541 U.S. 267

Docket Number: 02-1580

Court Abbreviation: SCOTUS