League of United Latin American Citizens v. PerryAnnotate this Case
548 U.S. ___ (2006)
- Opinion (Anthony M. Kennedy)
- Concurrence & Dissent In Part (John Paul Stevens)
- Concurrence & Dissent In Part (Antonin Scalia)
- Concurrence & Dissent In Part (Stephen G. Breyer)
- Concurrence & Dissent In Part (John G. Roberts, Jr.)
- Concurrence & Dissent In Part (David H. Souter)
OPINION OF STEVENS, J.
LEAGUE OF UNITED LATIN AMERICAN CITIZENS V.PERRY
548 U. S. ____ (2006)
SUPREME COURT OF THE UNITED STATES
NOS. 05-204, 05-254, 05-276 AND 05-439
LEAGUE OF UNITED LATIN AMERICAN CITIZENS, et al., APPELLANTS
RICK PERRY, GOVERNOR OF TEXAS, et al.
TRAVIS COUNTY, TEXAS, et al., APPELLANTS
RICK PERRY, GOVERNOR OF TEXAS, et al.
EDDIE JACKSON, et al., APPELLANTS
RICK PERRY, GOVERNOR OF TEXAS, et al.
GI FORUM OF TEXAS, et al., APPELLANTS
RICK PERRY, GOVERNOR OF TEXAS, et al.
on appeals from the united states district court for the eastern district of texas
[June 28, 2006]
Justice Stevens, with whom Justice Breyer joins as to Parts I and II, concurring in part and dissenting in part.
This is a suit in which it is perfectly clear that judicially manageable standards enable us to decide the merits of a statewide challenge to a political gerrymander. Applying such standards, I shall explain why the wholly unnecessary replacement of the neutral plan fashioned by the three-judge court in Balderas v. Texas, Civ. Action No. 6:01CV158 (ED Tex., Nov. 14, 2001) (Plan 1151C or Balderas Plan) with Plan 1374C, which creates districts with less compact shapes, violates the Voting Rights Act, and fragments communities of interest—all for purely partisan purposes—violated the State’s constitutional duty to govern impartially. Prior misconduct by the Texas Legislature neither excuses nor justifies that violation. Accordingly, while I join the Court’s decision to invalidate District 23, I would hold that Plan 1374C is entirely invalid and direct the District Court to reinstate Plan 1151C. Moreover, as I shall explain, even if the remainder of the plan were valid, the cracking of Balderas District 24 would still be unconstitutional.
The maintenance of existing district boundaries is advantageous to both voters and candidates. Changes, of course, must be made after every census to equalize the population of each district or to accommodate changes in the size of a State’s congressional delegation. Similarly, changes must be made in response to a finding that a districting plan violates §2 or §5 of the Voting Rights Act, 42 U. S. C. §§1973, 1973c. But the interests in orderly campaigning and voting, as well as in maintaining communication between representatives and their constituents, underscore the importance of requiring that any decision to redraw district boundaries—like any other state action that affects the electoral process—must, at the very least, serve some legitimate governmental purpose. See, e.g., Burdick v. Takushi,504 U. S. 428, 434, 440 (1992); id., at 448–450 (Kennedy, J., joined by Blackmun and Stevens, JJ., dissenting). A purely partisan desire “to minimize or cancel out the voting strength of racial or political elements of the voting population,” Fortson v. Dorsey,379 U. S. 433, 439 (1965), is not such a purpose. Because a desire to minimize the strength of Texas Democrats was the sole motivation for the adoption of Plan 1374C, see Session v. Perry, 298 F. Supp. 2d 451, 470, 472 (ED Tex. 2004) (per curiam), the plan cannot withstand constitutional scrutiny.
The districting map that Plan 1374C replaced, Plan 1151C, was not only manifestly fair and neutral, it may legitimately be described as a milestone in Texas’ political history because it put an end to a long history of Democratic misuse of power in that State. For decades after the Civil War, the political party associated with the former Commander in Chief of the Union Army attracted the support of former slaves and a handful of “carpetbaggers,” but had no significant political influence in Texas. The Democrats maintained their political power by excluding black voters from participating in primary elections, see, e.g., Smith v. Allwright,321 U. S. 649, 656–661 (1944), by the artful management of multimember electoral schemes, see, e.g., White v. Regester,412 U. S. 755, 765–770 (1973), and, most recently, by outrageously partisan gerrymandering, see ante, at 3–4 (opinion of Kennedy, J.); Bush v. Vera,517 U. S. 952, 987–990 (1996) (appendices in plurality opinion), id., at 1005–1007, 1042–1045 (Stevens, J., dissenting). Unfortunately, some of these tactics are not unique to Texas Democrats; the apportionment scheme they devised in the 1990’s is only one example of the excessively gerrymandered districting plans that parties with control of their States’ governing bodies have implemented in recent years. See, e.g., Cox v. Larios, 542 U. S. 947, 947–950 (2004) (Stevens, J., joined by Breyer, J., concurring) (Democratic gerrymander in Georgia); Vieth v. Jubelirer,541 U. S. 267, 272 (2004) (plurality opinion); id., at 342 (Stevens, J., dissenting) (Republican gerrymander in Pennsylvania); Karcher v. Daggett,462 U. S. 725, 744 (1983) (Democratic gerrymander in New Jersey); Badham v. Eu, 694 F. Supp. 664, 666 (ND Cal. 1988), summarily aff’d, 488 U. S. 1024 (1989) (Democratic gerrymander in California).
Despite the Texas Democratic Party’s sordid history of manipulating the electoral process to perpetuate its stranglehold on political power, the Texas Republican Party managed to become the State’s majority party by 2002. If, after finally achieving political strength in Texas, the Republicans had adopted a new plan in order to remove the excessively partisan Democratic gerrymander of the 1990’s, the decision to do so would unquestionably have been supported by a neutral justification. But that is not what happened. Instead, as the following discussion of the relevant events that transpired in Texas following the release of the 2000 census data demonstrates, Texas Republicans abandoned a neutral apportionment map for the sole purpose of manipulating district boundaries to maximize their electoral advantage and thus create their own impermissible stranglehold on political power.
By 2001, Texas Republicans had overcome many of the aforementioned tactics designed to freeze the Democrats’ status as the State’s dominant party, and Republicans controlled the governorship and the State Senate. Democrats, however, continued to constitute a majority of the State House of Representatives. In March of that year, the results of the 2000 decennial census revealed that, as a result of its population growth, Texas was entitled to two additional seats in the United States House of Representatives, bringing the size of the Texas congressional delegation to 32. Texas, therefore, was required to draw 32 equipopulous districts to account for its additional representation and to comply with the one-person, one-vote mandate of Article I, §2, see, e.g., Karcher,462 U. S. 725. Under Texas law, the Texas Legislature was required to draw these new districts. See Session, 298 F. Supp. 2d, at 457–458.
The Texas Legislature, divided between a Republican Senate and a Democratic House, did not reach agreement on a new congressional map in the regular legislative session, and Governor Rick Perry declined to call a special session. Litigation in the Texas state courts also failed to result in a plan, as the Texas Supreme Court vacated the map created by a state trial judge. See Perry v. Del Rio, 67 S. W. 3d 85 (2001). This left a three-judge Federal District Court in the Eastern District of Texas with “ ‘the unwelcome obligation of performing in the legislature’s stead.’ ” Balderas v. Texas, Civ. Action No. 6:01CV158 (Nov. 14, 2001) (per curiam), App. E to Juris. Statement in No. 05–276, p. 202a (hereinafter App. to Juris Statement) (quoting Connor v. Finch,431 U. S. 407, 415 (1977)).
After protracted proceedings which included the testimony of an impartial expert as well as representatives of interested groups supporting different plans, the court prepared its own plan. “Conscious that the primary responsibility for drawing congressional districts is given to political branches of government, and hesitant to ‘und[o] the work of one political party for the benefit of another,’ the three-judge Balderas court sought to apply ‘only “neutral” redistricting standards’ when drawing Plan 1151C.” Ante, at 4 (opinion of Kennedy, J.) (quoting Henderson v. Perry, 399 F. Supp. 2d 756, 768 (ED Tex. 2005)). As the court explained, it started with a blank map of Texas, drew in the existing districts protected by the Voting Rights Act, located the new Districts 31 and 32 where the population growth that produced them had occurred, and then applied the neutral criteria of “compactness, contiguity, and respecting county and municipal boundaries.” App. to Juris. Statement 205a. See id., at 206a–209a. The District Court purposely “eschewed an effort to treat old lines as an independent locator,” and concluded that its plan had done much “to end most of the below-the-surface ‘ripples’ of the 1991 plan and the myriad of submissions before us. For example, the patently irrational shapes of Districts 5 and 6 under the 1991 plan, widely-cited as the most extreme but successful gerrymandering in the country, are no more.” Id., at 207a–208a.
At the conclusion of this process, the court believed that it had fashioned a map that was “likely to produce a congressional delegation roughly proportional to the party voting breakdown across the state.” Id., at 209a. Indeed, reflecting the growing strength of the Republican Party, the District Court’s plan, Plan 1151C, offered that party an advantage in 20 of the 32 congressional seats. See Session, 298 F. Supp. 2d, at 471 (describing Plan 1151C).The State’s expert in this litigation testified that the Balderas Plan was not biased in favor of Democrats and that it was “[m]aybe slightly” biased in favor of Republicans. App. 224 (deposition of Ronald Keith Gaddie, Ph.D.). Although groups of Latino voters challenged Plan 1151C on appeal, neither major political party did so, and the State of Texas filed a motion asking this Court to affirm the District Court’s judgment, which we did, see Balderas v. Texas,536 U. S. 919 (2002).
In the 2002 congressional elections, however, Republicans were not able to capitalize on the advantage that the Balderas plan had provided them. A number of Democratic incumbents were able to attract the votes of ticket-splitters (individuals who voted for candidates from one party in statewide elections and for a candidate from a different party in congressional elections), and thus won elections in some districts that favored Republicans. As a result, Republicans carried only 15 of the districts drawn by the Balderas court.[Footnote 1]
While the Republicans did not do as well as they had hoped in elections for the United States House of Representatives, they made gains in the Texas House of Representatives and won a majority of seats in that body. This gave Texas Republicans control over both bodies of the state legislature, as well as the Governor’s mansion, for the first time since Reconstruction.
With full control of the State’s legislative and executive branches, the Republicans “decided to redraw the state’s congressional districts solely for the purpose of seizing between five and seven seats from Democratic incumbents.” Session,298 F. Supp. 2d, at 472 (citation and internal quotation marks omitted). According to former Lieutenant Governor Bill Ratliff, a highly regarded Republican member of the State Senate, “political gain for the Republicans was 110% of the motivation for the Plan, . . . it was ‘the entire motivation.’ ” Id., at 473 (quoting trial transcript). Or, as the District Court stated in the first of its two decisions in this litigation, “[t]here is little question but that the single-minded purpose of the Texas Legislature in enacting Plan 1374C was to gain partisan advantage.” Id., at 470. See also ante, at 5 (quoting District Court’s conclusion). Indeed, as the State itself argued before the District Court: “The overwhelming evidence demonstrated that partisan gain was the motivating force behind the decision to redistrict in 2003.” State Defendants’ Post-Trial Brief in No. 2:03–CV–354 (ED Tex.), p. 51 (hereinafter State Post-Trial Brief).
This desire for political gain led to a series of dramatic confrontations between Republicans and Democrats, and ultimately resulted in the adoption of a plan that violated the Voting Rights Act. The legislature did not pass a new map in the regular 2003 session, in part because Democratic House members absented themselves and thus denied the body a quorum. Governor Perry then called a special session to take up congressional redistricting—the same step he had declined to take in 2001 after the release of the decennial census figures, when Republicans lacked a majority in the House. During the first special session, the House approved a new congressional map, but the Senate’s longstanding tradition requiring two-thirds of that body to support a measure before the full Senate will consider it allowed Democrats to block the plan.
Lieutenant Governor Dewhurst then announced that he would suspend operation of the two-thirds rule in any future special session considering congressional redistricting. Nonetheless, in a second special session, Senate Democrats again prevented the passage of a new districting map by leaving the State and depriving the Senate of a quorum. When a lone Senate Democrat returned to Texas, Governor Perry called a third special session to consider congressional redistricting.
During that third special session, the State Senate and the State House passed maps that would have apparently avoided any violation of the Voting Rights Act, because they would have, inter alia, essentially preserved Balderas District 23, a majority-Latino district in southwest Texas, and Balderas District 24, a majority-minority district in the Dallas-Fort Worth area, where black voters constituted a significant majority of voters in the Democratic primary and usually elected their candidate of choice in the general election. Representative Phil King, the redistricting legislation’s chief sponsor in the Texas House, had previously proposed fragmenting District 24, but, after lawyers reviewed the map, King expressed concern that redrawing District 24 might violate the Voting Rights Act, and he drafted a new map that left District 24 largely unchanged.
Nonetheless, the conferees seeking to reconcile the House and Senate plans produced a map that, as part of its goal of maximizing Republican political advantage, significantly altered both Districts 23 and 24 as they had existed in the Balderas Plan. Balderas District 23 was extended north to take in roughly 100,000 new people who were predominately Anglo and Republican, and was also moved west, thus splitting Webb County and the City of Laredo, and pushing roughly 100,000 people who were predominately Latino and Democratic into an adjacent district. Session, 298 F. Supp. 2d, at 488–489. Black voters who previously resided in Balderas District 24 were fragmented into five new districts, each of which is predominately Anglo and Republican. See App. 104–106. Representative King testified at trial that District 24 was cracked even though cracking the district was not “ ‘the path of least resistance’ ” in terms of avoiding Voting Rights Act liability, because leaving Balderas District 24 intact would not “accomplish our political objectives.” State Post-Trial Brief 51–52 (quoting transcript). This map was ultimately enacted into law as Plan 1374C.
The overall effect of Plan 1374C was to shift more than eight million Texans into new districts, and to split more counties into more pieces than the Balderas Plan. Moreover, the 32 districts in Plan 1374C are, on average, much less compact under either of two standard measures than their counterparts had been under the Balderas Plan. See App. 177–178 (expert report of Professor Gaddie).[Footnote 2]
Numerous parties filed suit in federal court challenging Plan 1374C on the grounds that it violated §2 of the Voting Rights Act and that it constituted an unconstitutional partisan gerrymander. A three-judge panel—two of whom also were members of the Balderas court—rejected these challenges, over Judge Ward’s partial dissent on the §2 claims. See Session, 298 F. Supp. 2d 451. Responding to plaintiffs’ appeals, we remanded for reconsideration in light of Vieth, 541 U. S. 267. See 543 U. S. 941 (2004).
In a characteristically thoughtful opinion written by Judge Higginbotham, the District Court again rejected all challenges to the constitutionality of Plan 1374C. See Henderson, 399 F. Supp. 2d 756. It correctly found that the Constitution does not prohibit a state legislature from redrawing congressional districts in the middle of a census cycle, see id., at 766, and it also correctly recognized that this Court has not yet endorsed clear standards for judging the validity of partisan gerrymanders, see id., at 760–762. Because the District Court’s original decision, and its reconsideration of the case in the light of the several opinions in Vieth v. Jubelirer, are successive chapters in the saga that began with Balderas, it is appropriate to quote this final comment from that opinion before addressing the principal question that is now presented. The Balderas court concluded:
“Finally, to state directly what is implicit in all that we have said: political gerrymandering, a purely partisan exercise, is inappropriate for a federal court drawing a congressional redistricting map. Even at the hands of a legislative body, political gerrymandering is much a bloodfeud, in which revenge is exacted by the majority against its rival. We have left it to the political arena, as we must and wisely should. We do so because our role is limited and not because we see gerrymandering as other than what it is: an abuse of power that, at its core, evinces a fundamental distrust of voters, serving the self-interest of the political parties at the expense of the public good.” App. to Juris. Statement 209a–210a (footnote omitted).
The unique question of law that is raised in this appeal is one that the Court has not previously addressed. That narrow question is whether it was unconstitutional for Texas to replace a lawful districting plan “in the middle of a decade, for the sole purpose of maximizing partisan advantage.” Juris. Statement in No. 05–276, p. i. This question is both different from, and simpler than, the principal question presented in Vieth v. Jubelirer, in which the “ ‘lack of judicially discoverable and manageable standards’ ” prevented the plurality from deciding the merits of a statewide challenge to a political gerrymander. 541 U. S., at 277–278.
As the State points out, “in every political-gerrymandering claim the Court has considered, the focus has been on the map itself, not on the decision to create the map in the first place.” Brief for State Appellees 33. In defense of the map itself, rather than the basic decision whether to draw the map in the first place, the State notes that Plan 1374C’s district borders frequently follow county lines and other neutral criteria. At what the State describes as the relevant “level of granularity,” the State correctly points out that appellants have not even attempted to argue that every district line was motivated solely for partisan gain. Ibid. See also ante, at 11 (opinion of Kennedy, J.) (noting that “partisan aims did not guide every line” in Plan 1374C). Indeed, the multitude of “granular” decisions that are made during redistricting was part of why the Vieth plurality concluded, in the context of a statewide challenge to a redistricting plan promulgated in response to a legal obligation to redistrict, that there are no manageable standards to govern whether the predominant motivation underlying the entire redistricting map was partisan. See 541 U. S., at 285. But see id., at 355 (Breyer, J., dissenting) (arguing that there are judicially manageable standards to assess statewide districting challenges even when a plan is enacted in response to a legal obligation to redistrict).
Unlike Vieth, the narrow question presented by the statewide challenge in this litigation is whether the State’s decision to draw the map in the first place, when it was under no legal obligation to do so, was permissible. It is undeniable that identifying the motive for making that basic decision is a readily manageable judicial task. See Gomillion v. Lightfoot,364 U. S. 339, 341 (1960) (noting that plaintiffs’ allegations, if true, would establish by circumstantial evidence “tantamount for all practical purposes to a mathematical demonstration,” that redistricting legislation had been enacted “solely” to segregate voters along racial lines); cf. Personnel Administrator of Mass. v. Feeney,442 U. S. 256, 276–280 (1979) (analyzing whether the purpose of a law was to discriminate against women). Indeed, although the Constitution places no per se ban on midcycle redistricting, a legislature’s decision to redistrict in the middle of the census cycle, when the legislature is under no legal obligation to do so, makes the judicial task of identifying the legislature’s motive simpler than it would otherwise be. As Justice Breyer has pointed out, “the presence of midcycle redistricting, for any reason, raises a fair inference that partisan machinations played a major role in the map-drawing process.” Vieth, 541 U. S., at 367 (dissenting opinion).
The conclusion that courts can easily identify the motive for redistricting when the legislature is under no legal obligation to act is reinforced by the record in this very case. The District Court unambiguously identified the sole purpose behind the decision to promulgate Plan 1374C: a desire to maximize partisan advantage. See Session, 298 F. Supp. 2d, at 472 (“It was clear from the evidence” that Republicans “ ‘decided to redraw the state’s congressional districts solely for the purpose of seizing between five and seven seats from Democratic incumbents’ ” (quoting amicus brief filed in Vieth v. Jubelirer); 298 F. Supp., at 470 (“There is little question but that the single-minded purpose of the Texas Legislature in enacting Plan 1374C was to gain partisan advantage”). It does not matter whether the District Court’s description of that purpose qualifies as a specific finding of fact because it is perfectly clear that there is more than ample evidence in the record to support such a finding. This evidence includes: (1) testimony from state legislators; (2) the procedural irregularities described above that accompanied the adoption of Plan 1374C, including the targeted abolition of the longstanding two-thirds rule, designed to protect the rights of the minority party, in the Texas Senate; (3) Plan 1374C’s significant departures from the neutral districting criteria of compactness and respect for county lines; (4) the plan’s excessive deviations from prior districts, which interfere with the development of strong relationships between Members of Congress and their constituents; and (5) the plan’s failure to comply with the Voting Rights Act. Indeed, the State itself conceded that “[t]he overwhelming evidence demonstrated that partisan gain was the motivating force behind the decision to redistrict in 2003.” State Post-Trial Brief 51. In my judgment, there is not even a colorable basis for contending that the relevant intent—in this case a purely partisan intent[Footnote 3]—cannot be identified on the basis of admissible evidence in the record.[Footnote 4]
Of course, the conclusions that courts are fully capable of analyzing the intent behind a decision to redistrict, and that desire for partisan gain was the sole factor motivating the decision to redistrict at issue here, do not resolve the question whether proof of a single-minded partisan intent is sufficient to establish a constitutional violation.
On the merits of that question, the State seems to assume that our decision in Upham v. Seamon,456 U. S. 37 (1982) (per curiam), has already established the legislature’s right to replace a court-ordered plan with a plan drawn for purely partisan purposes. Justice Kennedy ultimately indulges in a similar assumption, relying on Upham for the proposition that “our decisions have assumed that state legislatures are free to replace court-mandated remedial plans by enacting redistricting plans of their own.” Ante, at 9. Justice Kennedy recognizes that “[j]udicial respect for legislative plans, however, cannot justify legislative reliance on improper criteria for districting determinations.” Ibid. But Justice Kennedy then incorrectly concludes that the singular intent to maximize partisan advantage is not, in itself, such an improper criterion. Ante, at 11.
This reliance on Upham overlooks critical distinctions between the redistricting plan the District Court drew in Upham and the redistricting plan the District Court drew in Balderas. The judicial plan in Upham was created to provide an interim response to an objection by the Attorney General that two contiguous districts in a plan originally drafted by the Texas Legislature violated §5 of the Voting Rights Act. We concluded that, in fashioning its interim remedy, the District Court had erroneously “substituted its own reapportionment preferences for those of the state legislature.” 456 U. S., at 40. We held that when judicial relief was necessary because a state legislature had failed “ ‘to reapportion according to federal constitutional [or statutory] requisites in a timely fashion after having had an adequate opportunity to do so,’ ” the federal court should, as much as possible “ ‘follow the policies and preferences of the State,’ ” in creating a new map. Id., at 41 (quoting White v. Weiser,412 U. S. 783, 794–795 (1973)). We did not suggest that federal courts should honor partisan concerns, but rather identified the relevant state policies as those “ ‘expressed in statutory and constitutional provisions or in the reapportionment plans proposed by the state legislature, whenever adherence to state policy does not detract from the requirements of the Federal Constitution.’ ” Upham, 456 U. S., at 41 (quoting White, 412 U. S., at 794–795). Because the District Court in Upham had exceeded its authority in drawing a new districting map, we made clear that the legislature was authorized to remedy the §5 violation with a map of its own choosing. See 456 U. S., at 44. Upham, then, stands only for the proposition that a state legislature is authorized to redraw a court-drawn congressional districting map when a district court has exceeded its remedial authority. Upham does not stand for the proposition that, after a State embraces a valid, neutral court-drawn plan by asking this Court to affirm the opinion creating that plan, the State may then redistrict for the sole purpose of disadvantaging a minority political party.
Indeed, to conclude otherwise would reflect a fundamental misunderstanding of the reason why we have held that state legislatures, rather than federal courts, should have the primary task of creating apportionment plans that comport with federal law. We have so held because “a state legislature is the institution that is by far the best situated to identify and then reconcile traditional state policies” with the requirements of federal law, Finch, 431 U. S., at 414–415, not because we wish to supply a dominant party with an opportunity to disadvantage its political opponents. Indeed, a straightforward application of settled constitutional law leads to the inescapable conclusion that the State may not decide to redistrict if its sole motivation is “to minimize or cancel out the voting strength of racial or political elements of the voting population,” Fortson, 379 U. S., at 439 (emphasis added).
The requirements of the Federal Constitution that limit the State’s power to rely exclusively on partisan preferences in drawing district lines are the Fourteenth Amendment’s prohibition against invidious discrimination, and the First Amendment’s protection of citizens from official retaliation based on their political affiliation. The equal protection component of the Fourteenth Amendment requires actions taken by the sovereign to be supported by some legitimate interest, and further establishes that a bare desire to harm a politically disfavored group is not a legitimate interest. See, e.g., Cleburne v. Cleburne Living Center, Inc.,473 U. S. 432, 447 (1985). Similarly, the freedom of political belief and association guaranteed by the First Amendment prevents the State, absent a compelling interest, from “penalizing citizens because of their participation in the electoral process, … their association with a political party, or their expression of political views.” Vieth, 541 U. S., at 314 (Kennedy, J., concurring in judgment) (citing Elrod v. Burns, 427 U. S. 347 (1976) (plurality opinion)). These protections embodied in the First and Fourteenth Amendments reflect the fundamental duty of the sovereign to govern impartially. E.g., Lehr v. Robertson,463 U. S. 248, 265 (1983); New York City Transit Authority v. Beazer,440 U. S. 568 (1979).
The legislature’s decision to redistrict at issue in this litigation was entirely inconsistent with these principles. By taking an action for the sole purpose of advantaging Republicans and disadvantaging Democrats, the State of Texas violated its constitutional obligation to govern impartially. “If a State passed an enactment that declared ‘All future apportionment shall be drawn so as most to burden Party X’s rights to fair and effective representation, though still in accord with one-person, one-vote principles,’ we would surely conclude the Constitution had been violated.” Vieth, 541 U. S., at 312 (Kennedy, J., concurring in judgment).
Relying solely on Vieth, Justice Kennedy maintains that even if legislation is enacted based solely on a desire to harm a politically unpopular minority, this fact is insufficient to establish unconstitutional partisan gerrymandering absent proof that the legislation did in fact burden “the complainants’ representative rights.” Ante, at 11. This conclusion—which clearly goes to the merits, rather than the manageability, of a partisan gerrymandering claim—is not only inconsistent with the constitutional requirement that state action must be supported by a legitimate interest, but also provides an insufficient response to appellants’ claim on the merits.
Justice Kennedy argues that adopting “the modified sole-intent test” could “encourage partisan excess at the outset of the decade, when a legislature redistricts pursuant to its decennial constitutional duty and is then immune from the charge of sole-motivation.” Ante, at 12–13. But this would be a problem of the Court’s own making. As the decision in Cox v. Larios, 542 U. S. 947, demonstrates, there are, in fact, readily manageable judicial standards that would allow injured parties to challenge excessive (and unconstitutional) partisan gerrymandering undertaken in response to the release of the decennial census data.[Footnote 5] See also Vieth, 541 U. S., at 328–339 (Stevens, J., dissenting); id., at 347–353 (Souter, J., joined by Ginsburg, J., dissenting); id., at 365–367 (Breyer, J., dissenting). Justice Kennedy’s concern about a heightened incentive to engage in such excessive partisan gerrymandering would be avoided if the Court were willing to enforce those standards.
In any event, Justice Kennedy’s additional requirement that there be proof that the gerrymander did in fact burden the complainants’ representative rights is clearly satisfied by the record in this litigation. Indeed, the Court’s accurate exposition of the reasons why the changes to District 23 diluted the voting rights of Latinos who remain in that district simultaneously explains why those changes also disadvantaged Democratic voters and thus demonstrates that the effects of a political gerrymander can be evaluated pursuant to judicially manageable standards.
In my judgment the record amply supports the conclusion that Plan 1374C not only burdens the minority party in District 23, but also imposes a severe statewide burden on the ability of Democratic voters and politicians to influence the political process.[Footnote 6]
In arguing that Plan 1374C does not impose an unconstitutional burden on Democratic voters and candidates, the State takes the position that the plan has resulted in an equitable distribution of political power between the State’s two principal political parties. The State emphasizes that in the 2004 elections—held pursuant to Plan 1374C—Republicans won 21 of 32, or 66%, of the congressional seats. That same year, Republicans carried 58% of the vote in statewide elections. Admittedly, these numbers do suggest that the State’s congressional delegation was “roughly proportional” to the parties’ share of the statewide vote, Brief for State Appellees 44, particularly in light of the fact that our electoral system tends to produce a “seat bonus” in which a party that wins a majority of the vote generally wins an even larger majority of the seats, see Brief for Alan Heslop et al. as Amici Curiae (describing the seat bonus phenomenon). Cf. ante, at 12 (opinion of Kennedy, J.) (arguing that, compared to the redistricting plan challenged in Vieth, “Plan 1374C can be seen as making the party balance more congruent to statewide party power”).
That Plan 1374C produced a “roughly proportional” congressional delegation in 2004 does not, however, answer the question whether the plan has a discriminatory effect against Democrats. As appellants point out, whether a districting map is biased against a political party depends upon the bias in the map itself—in other words, it depends upon the opportunities that the map offers each party, regardless of how candidates perform in a given year. And, as the State’s expert found in this litigation, Plan 1374C clearly has a discriminatory effect in terms of the opportunities it offers the two principal political parties in Texas. Indeed, that discriminatory effect is severe.
According to Professor Gaddie, the State’s expert, Plan 1374C gives Republicans an advantage in 22 of 32 congressional seats. The plaintiffs’ expert, Professor Alford, who had been cited favorably by the Balderas Court as having applied a “neutral approach” to redistricting in that litigation, App. to Juris. Statement 207a, agreed. He added that, in his view, the only surprise from the 2004 elections was “how far things moved” toward achieving a 22-to-10 pro-Republican split “in a single election year,” id., at 226a (declaration of John R. Alford, Ph.D.).[Footnote 7] But this 22-to-10 advantage does not depend on Republicans winning the 58% share of the statewide vote that they received in 2004. Instead, according to Professor Gaddie, Republicans would be likely to carry 22 of 32 congressional seats if they won only 52% of the statewide vote. App. 216, 229. Put differently, Plan 1374C ensures that, even if the Democratic Party succeeds in convincing 10% of the people who voted for Republicans in the last statewide elections to vote for Democratic congressional candidates,[Footnote 8] which would constitute a major electoral shift, there is unlikely to be any change in the number of congressional seats that Democrats win. Moreover, Republicans would still have an overwhelming advantage if Democrats achieved full electoral parity. According to Professor Gaddie’s analysis, Republicans would be likely to carry 20 of the 32 congressional seats even if they only won 50% (or, for that matter, 49%) of the statewide vote. Id., at 216, 229–230. This demonstrates that Plan 1374C is inconsistent with the symmetry standard, a measure social scientists use to assess partisan bias, which is undoubtedly “a reliable standard” for measuring a “burden … on the complainants’ representative rights,” ante, at 11 (opinion of Kennedy, J.).
The symmetry standard “requires that the electoral system treat similarly-situated parties equally, so that each receives the same fraction of legislative seats for a particular vote percentage as the other party would receive if it had received the same percentage.” Brief for Gary King et al. as Amici Curiae 4–5. This standard is widely accepted by scholars as providing a measure of partisan fairness in electoral systems. See, e.g.,Tufte, The Relationship Between Seats and Votes in Two-Party Systems, 67 Am. Pol. Sci. Rev. 540, 542–543 (1973); Gelman & King, Enhancing Democracy Through Legislative Redistricting, 88 Am. Pol. Sci. Rev. 541, 545 (1994); Thompson, Election Time: Normative Implications of TemporalProperties of the Electoral Process in the United States, 98 Am. Pol. Sci. Rev. 51, 53, and n. 7 (2004); Engstrom & Kernell, Manufactured Responsiveness: The Impact of State Electoral Laws on Unified Party Control of the Presidency and House of Representatives, 1840–1940, 49 Am. J. Pol. Sci. 531, 541 (2005). Like other models that experts use in analyzing vote dilution claims, compliance with the symmetry standard is measured by extrapolating from a sample of known data, see, e.g., Thornburg v. Gingles,478 U. S. 30, 53 and n. 20 (1986) (discussing extreme case analysis and bivariate ecological regression analysis). In this litigation, the symmetry standard was not simply proposed by an amicus to this Court, it was also used by the expert for plaintiffs and the expert for the State in assessing the degree of partisan bias in Plans 1151C and 1374C. See App. 34–42 (report of Professor Alford); id., at 189–193, 216 (report of Professor Gaddie).
Because, as noted above, Republicans would have an advantage in a significant majority of seats even if the statewide vote were equally distributed between Republicans and Democrats, Plan 1374C constitutes a significant departure from the symmetry standard. By contrast, based on Professor Gaddie’s evaluation, the Balderas Plan, though slightly biased in favor of Republicans, provided markedly more equitable opportunities to Republicans and Democrats. For example, consistent with the symmetry standard, under Plan 1151C the parties were likely to each take 16 congressional seats if they won 50% of the statewide vote. See App. 216.
Plan 1374C then, clearly has a discriminatory impact on the opportunities that Democratic citizens have to elect candidates of their choice. Moreover, this discriminatory effect cannot be dismissed as de minimis. According to the State’s expert, if each party receives half the statewide vote, under Plan 1374C the Republicans would carry 62.5% (20) of the congressional seats, whereas the Democrats would win 37.5% (12) of those seats. In other words, at the vote distribution point where a politically neutral map would result in zero differential in the percentage of seats captured by each party, Plan 1374C is structured to create a 25% differential. When a redistricting map imposes such a significant disadvantage on a politically salient group of voters, the State should shoulder the burden of defending the map. Cf. Brown v. Thomson,462 U. S. 835, 842–843 (1983) (holding that the implementation of a redistricting plan for state legislative districts with population deviations over 10% creates a prima facie case of discrimination under the Equal Protection Clause, thus shifting the burden to the State to defend the plan); Larios v. Cox, 300 F. Supp. 2d 1320, 1339–1340 (ND Ga.) (per curiam), summarily aff’d, 542 U. S. 947 (2004) (same, but further pointing out that the “ ‘ten percent rule’ ” is not a safe harbor, and concluding that, under the circumstances of the case before it, a state legislative districting plan was unconstitutional even though population deviations were under 10%). At the very least, once plaintiffs have established that the legislature’s sole purpose in adopting a plan was partisan—as plaintiffs have established in this action, see Part II, supra—such a severe discriminatory effect should be sufficient to meet any additional burden they have to demonstrate that the redistricting map accomplishes its discriminatory purpose.[Footnote 9]
The bias in Plan 1374C is most striking with regard to its effect on the ability of Democratic voters to elect candidates of their choice, but its discriminatory effect does not end there. Plan 1374C also lessens the influence Democratic voters are likely to be able to exert over Republican lawmakers, thus further minimizing Democrats’ capacity to play a meaningful role in the political process.
Even though it “defies political reality to suppose that members of a losing party have as much political influence over . . . government as do members of the victorious party,” Davis v. Bandemer,478 U. S. 109, 170 (1986) (Powell, J., concurring in part and dissenting in part), the Court has recognized that “the power to influence the political process is not limited to winning elections,” id., at 132 (plurality opinion); see also Georgia v. Ashcroft,539 U. S. 461, 482 (2003). In assessing whether members of a group whose candidate is defeated at the polls can nonetheless influence the elected representative, it is “important to consider ‘the likelihood that candidates elected without decisive minority support would be willing to take the minority’s interests into account.’ ” Id., at 482 (quoting Gingles, 478 U. S., at 100 (O’Connor, J., concurring in judgment)). One justification for majority rule is that elected officials will generally “take the minority’s interests into account,” in part because the majority recognizes that preferences shift and today’s minority could be tomorrow’s majority. See, e.g., L. Guinier, Tyranny of the Majority 77 (1994); J. Ely, Democracy and Distrust 84 (1980); cf. Letter from James Madison to Thomas Jefferson, (Oct. 24, 1787), reprinted in Republic of Letters 502 (J. Smith ed. 1995) (arguing that “[t]he great desideratum in Government is . . . to modify the sovereignty as that it may be sufficiently neutral between different parts of the Society” and thus prevent a fixed majority from oppressing the minority). Indeed, this Court has concluded that our system of representative democracy is premised on the assumption that elected officials will seek to represent their constituency as a whole, rather than any dominant faction within that constituency. See Shaw v. Reno,509 U. S. 630, 648 (1993).
Plan 1374C undermines this crucial assumption that congressional representatives from the majority party (in this case Republicans) will seek to represent their entire constituency. “When a district obviously is created solely to effectuate the perceived common interests of one racial group, elected officials are more likely to believe that their primary obligation is to represent only the members of that group, rather than their constituency as a whole.” Ibid. Shaw’s analysis of representational harms in the racial gerrymandering context applies with at least as much force in the partisan gerrymandering context because, in addition to the possibility that a representative may believe her job is only to represent the interests of a dominant constituency, a representative may feel more beholden to the cartographers who drew her district than to the constituents who live there. See Vieth, 541 U. S., at 329–331 (Stevens, J., dissenting). In short, Plan 1374C reduces the likelihood that Republican representatives elected from gerrymandered districts will act as vigorous advocates for the needs and interests of Democrats who reside within their districts.
In addition, Plan 1374C further weakens the incentives for members of the majority party to take the interests of the minority party into account, because it locks in a Republican congressional majority of 20–22 seats, so long as Republicans achieve at least 49% of the vote. The result of this lock-in is that, according to the State’s expert, between 19 and 22 of these Republican seats are safe seats, meaning seats where one party has at least a 10% advantage over the other. See App. 227–228 (expert report of Professor Gaddie). Members of Congress elected from such safe districts need not worry much about the possibility of shifting majorities, so they have little reason to be responsive to political minorities within their district.[Footnote 10]
In sum, I think it is clear that Plan 1374C has a severe burden on the capacity of Texas Democrats to influence the political process. Far from representing an example of “one of the most significant acts a State can perform to ensure citizen participation in republican self-governance,” ante, at 9 (opinion of Kennedy, J.),the plan guarantees that the Republican-dominated membership of the Texas congressional delegation will remain constant notwithstanding significant pro-Democratic shifts in public opinion. Moreover, the harms Plan 1374C imposes on Democrats are not “hypothetical” or “counterfactual,” id., at 13, simply because, in the 2004 elections, Republicans won a share of seats roughly proportional to their statewide voting strength. By creating 19–22 safe Republican seats, Plan 1374C has already harmed Democrats because, as explained above, it significantly undermines the likelihood that Republican lawmakers from those districts will be responsive to the interests of their Democratic constituents. In addition, Democrats will surely have a more difficult time recruiting strong candidates, and mobilizing voters and resources, in these safe Republican districts. Thus, appellants have satisfied any requisite obligation to demonstrate that they have been harmed by the adoption of Plan 1374C.
Furthermore, as discussed in Part II, supra, the sole intent motivating the Texas Legislature’s decision to replace Plan 1151C with Plan 1374C was to benefit Republicans and burden Democrats. Accordingly, in terms of both its intent and effect, Plan 1374C violates the sovereign’s duty to govern impartially.
“When a State adopts rules governing its election machinery or defining electoral boundaries, those rules must serve the interests of the entire community. If they serve no purpose other than to favor one segment—whether racial, ethnic, religious, or political—that may occupy a position of strength at a particular point in time, or to disadvantage a politically weak segment of the community, they violate the constitutional guarantee of equal protection.” Karcher, 462 U. S., at 748 (Stevens, J., concurring) (citation omitted).
Accordingly, even accepting the Court’s view that a gerrymander is tolerable unless it in fact burdens the minority’s representative rights, I would hold that Plan 1374C is unconstitutional.[Footnote 11]
Even if I thought that Plan 1374C were not unconstitutional in its entirety, I would hold that the cracking of District 24—which, under the Balderas Plan, was a majority-minority district that consistently elected Democratic Congressman Martin Frost—was unconstitutional. Readily manageable standards enable us to analyze both the purpose and the effect of the “granular” decisions that produced the replacements for District 24. Applying these standards, which I set forth below, I believe it is clear that the manipulation of this district for purely partisan gain violated the First and Fourteenth Amendments.
The same constitutional principles discussed above concerning the sovereign’s duty to govern impartially inform the proper analysis for claims that a particular district is an unconstitutional partisan gerrymander. We have on several occasions recognized that a multimember district is subject to challenge under the Fourteenth Amendment if it operates “ ‘to minimize or cancel out the voting strength of racial or political elements of the voting population.’ ” E.g., Gaffney v. Cummings,412 U. S. 735, 751 (1973) (emphasis added); Burns v. Richardson,384 U. S. 73, 88 (1966). There is no constitutionally relevant distinction between the harms inflicted by single-member district gerrymanders that minimize or cancel out the voting strength of a political element of the population and the same harms inflicted by multimember districts. In both situations, the State has interfered with the voter’s constitutional right to “engage in association for the advancement of beliefs and ideas,” NAACP v. Alabama ex rel. Patterson,357 U. S. 449, 460 (1958).
I recognize that legislatures will always be aware of politics and that we must tolerate some consideration of political goals in the redistricting process. See Cousins v. City Council of Chicago, 466 F. 2d 830, 847 (CA7 1972) (Stevens, J., dissenting). However, I think it is equally clear that, when a plaintiff can prove that a legislature’s predominant motive in drawing a particular district was to disadvantage a politically salient group, and that the decision has the intended effect, the plaintiff’s constitutional rights have been violated. See id., at 859–860. Indeed, in Vieth, five Members of this Court explicitly recognized that extreme partisan gerrymandering violates the Constitution. See 541 U. S., at 307, 312–316 (Kennedy, J., concurring in judgment); id., at 317–318 (Stevens, J., dissenting); id., at 343, 347–352 (Souter, J., joined by Ginsburg, J., dissenting); id., at 356–357, 366–367 (Breyer, J., dissenting). The other four Justices in Vieth stated that they did not disagree with that conclusion. See id., at 292 (plurality opinion). The Vieth plurality nonetheless determined that there were no judicially manageable standards to assess partisan gerrymandering claims. Id., at 305–306. However, the following test, which shares some features of the burden-shifting standard for assessing unconstitutional partisan gerrymandering proposed by Justice Souter’s opinion in Vieth, see id., at 348–351, would provide a remedy for at least the most blatant unconstitutional partisan gerrymanders and would also be eminently manageable.
First, to have standing to challenge a district as an unconstitutional partisan gerrymander, a plaintiff would have to prove that he is either a candidate or a voter who resided in a district that was changed by a new districting plan. See id., at 327–328 (Stevens, J., dissenting) (discussing United States v. Hays,515 U. S. 737 (1995)). See also 541 U. S., at 347–348 (Souter, J., joined by Ginsburg, J., dissenting) (citing Hays). A plaintiff with standing would then be required to prove both improper purpose and effect.
With respect to the “purpose” portion of the inquiry, I would apply the standard fashioned by the Court in its racial gerrymandering cases. Under the Court’s racial gerrymandering jurisprudence, judges must analyze whether plaintiffs have proved that race was the predominant factor motivating a districting decision such that other, race-neutral districting principles were subordinated to racial considerations. If so, strict scrutiny applies, see, e.g., Vera, 517 U. S., at 958–959 (plurality opinion), and the State must justify its districting decision by establishing that it was narrowly tailored to serve a compelling state interest, such as compliance with §2 of the Voting Rights Act, see King v. Illinois Bd. of Elections, 979 F. Supp. 619 (ND Ill. 1997), aff’d, 522 U. S. 1087 (1998); Vera, 517 U. S., at 994 (O’Connor, J., concurring).[Footnote 12] However, strict scrutiny does not apply merely because race was one motivating factor behind the drawing of a majority-minority district. Id., at 958–959 (plurality opinion); see also Easley v. Cromartie, 532 U. S. 234, 241 (2001). Applying these standards to the political gerrymandering context, I would hold that, if a plaintiff carried her burden of demonstrating that redistricters subordinated neutral districting principles to political considerations and that their predominant motive was to maximize one party’s power, she would satisfy the intent prong of the constitutional inquiry.[Footnote 13] Cf. Vieth, 541 U. S., at 349–350 (Souter, J., joined by Ginsburg, J., dissenting) (discussing the importance of a district’s departures from traditional districting principles in determining whether the district is an unconstitutional gerrymander).
With respect to the effects inquiry, a plaintiff would be required to demonstrate the following three facts: (1) her candidate of choice won election under the old plan; (2) her residence is now in a district that is a safe seat for the opposite party; and (3) her new district is less compact than the old district. The first two prongs of this effects inquiry would be designed to measure whether or not the plaintiff has been harmed, whereas the third prong would be relevant because the shape of the gerrymander has always provided crucial evidence of its character, see Karcher, 462 U. S., at 754–758, 762–763 (Stevens, J., concurring); see also Vieth, 541 U. S., at 348 (Souter, J., joined by Ginsburg, J., dissenting) (noting that compactness is a traditional districting principle, which “can be measured quantitatively”). Moreover, a safe harbor for more compact districts would allow a newly elected majority to eliminate a prior partisan gerrymander without fear of liability or even the need to devote resources to litigating whether or not the legislature had acted with an impermissible intent.
If a plaintiff with standing could meet the intent and effects prong of the test outlined above, that plaintiff would clearly have demonstrated a violation of her constitutional rights. Moreover, I do not think there can be any colorable claim that this test would not be judicially manageable.
Applying this test to the facts of this case, I think plaintiffs in new Districts 6, 24, 26, and 32—four of the districts in Plan 1374C that replaced parts of Balderas District 24—can demonstrate that their constitutional rights were violated by the cracking of Balderas District 24. First, I assume that there are plaintiffs who reside in Districts 6, 24, 26, and 32, and whose homes were previously located in Balderas District 24.[Footnote 14] Accordingly, I assume that there are plaintiffs who have standing to challenge the creation of these districts.
Second, plaintiffs could easily satisfy their burden of proving predominant partisan purpose. Indeed, in this litigation, the State has acknowledged that its predominant motivation for cracking District 24 was to achieve partisan gain. See State Post-Trial Brief 51–52 (noting that, in spite of concerns that the cracking of District 24 could lead to Voting Rights Act liability, “[t]he Legislature … chose to pursue a political goal of unseating Congressman Frost instead of following a course that might have lowered risks [of such liability]”).
The District Court agreed with the State’s analysis on this issue. In the District Court, plaintiffs claimed that the creation of District 26 violated the Equal Protection Clause because the decision to create District 26 was motivated by unconstitutional racial discrimination against black voters. The District Court rejected this argument, concluding that the State’s decision to crack Balderas District 24 was driven not by racial prejudice, but rather by the political desire to maximize Republican advantage and to “remove Congressman Frost,” which required that Frost “lose a large portion of his Democratic constituency, many of whom lived in a predominately Black area of Tarrant County.” Session, 298 F. Supp. 2d, at 471.
That an impermissible, predominantly partisan, purpose motivated the cracking of former District 24 is further demonstrated by the fact that, in my judgment, this cracking caused Plan 1374C to violate §5 of the Voting Rights Act, 42 U. S. C. §1973c. The State’s willingness to adopt a plan that violated its legal obligations under the Voting Rights Act, combined with the other indicia of partisan intent in this litigation, is compelling evidence that politics was not simply one factor in the cracking of District 24, but rather that it was an impermissible, predominant factor.
Section 5 of the Voting Rights Act “was intended ‘to insure that that [the gains thus far achieved in minority political participation] shall not be destroyed through new [discriminatory] procedures and techniques.’ ” Beer v. United States,425 U. S. 130, 140–141 (1976) (quoting S. Rep. No. 94–295, p. 19 (1975) (alteration in Beer)). To effectuate this goal, §5 prevents covered jurisdictions, such as Texas, from making changes to their voting procedures “that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.” Georgia, 539 U. S., at 477 (internal quotation marks and citations omitted). In other words, during the redistricting process, covered jurisdictions may not “leave minority voters with less chance to be effective in electing preferred candidates than they were” under the prior districting plan. See id., at 494 (Souter, J., dissenting). By cracking Balderas District 24, and by not offsetting the loss in black voters’ ability to elect preferred candi- dates elsewhere, Plan 1374C resulted in impermissible retrogression.
Under the Balderas Plan, black Americans constituted a majority of Democratic primary voters in District 24. According to the unanimous report authored by staff attorneys in the Voting Section of the Department of Justice, black voters in District 24 generally voted cohesively, and thus had the ability to elect their candidate of choice in the Democratic primary. Section 5 Recommendation Memorandum 33 (Dec. 12, 2003), available at http://www.washingtonpost.com/wp-srv/nation/documents/ texasDOJmemo.pdf (all Internet materials as visited June 21, 2006, and available in Clerk of Court’s case file). Moreover, the black community’s candidates of choice could consistently attract sufficient crossover voting from nonblacks to win the general election, even though blacks did not constitute a majority of voters in the general election. Id., at 33–34. Representative Frost, who is white, was clearly the candidate of choice of the black community in District 24, based on election returns, testimony of community leaders, and “scorecards” he received from groups dedicated to advancing the interests of African-Americans. See id., at 35.
As noted above, in Plan 1374C, “the minority community in [Balderas District] 24 [was] splintered and submerged into majority Anglo districts in the Dallas-Fort Worth area.” Id., at 67. By dismantling one district where blacks had the ability to elect candidates of their choice,[Footnote 15] and by not offsetting this loss of a district with another district where black voters had a similar opportunity, Plan 1374C was retrogressive, in violation of §5 of the Voting Rights Act. See id., at 31, 67–69.
Notwithstanding the unanimous opinion of the staff attorneys in the Voting Section of the Justice Department that Plan 1374C was retrogressive and that the Attorney General should have interposed an objection, the Attorney General elected to preclear the map, thus allowing it to take effect. We have held that, under the statutory scheme, voters may not directly challenge the Attorney General’s decision to preclear a redistricting plan, see Morris v. Gressette,432 U. S. 491 (1977), which means that the Attorney General’s vigilant enforcement of the Act is critical, and which also means that plaintiffs could not bring a §5 challenge as part of this litigation.[Footnote 16] However, judges are frequently called upon to consider whether a redistricting plan violates §5, because a covered jurisdiction has the option of seeking to achieve preclearance by either submitting its plan to the Attorney General or filing a declaratory judgment action in the District Court for the District of Columbia, whose judgment is subject to review by this Court, see, e.g., Georgia, 539 U. S. 461. Accordingly, we have the tools to analyze whether a redistricting plan is retrogressive.
Even though the §5 issue is not directly before this Court, for the reasons stated above, I believe that the cracking of District 24 caused Plan 1374C to be retrogressive. And the fact that the legislature promulgated a retrogressive plan is relevant, because it provides additional evidence that the legislature acted with a predominantly partisan purpose. Complying with §5 is a neutral districting principle, and the legislature’s promulgation of a retrogressive redistricting plan buttresses my conclusion that the “legislature subordinated traditional [politically-]neutral districting principles . . . to [political] considerations.” Miller v. Johnson,515 U. S. 900, 916 (1995). This evidence is particularly compelling in light of the State’s acknowledgment that “[t]he Legislature … chose to pursue a political goal of unseating Congressman Frost instead of following a course that might have lowered risks in the preclearance process.” State Post-Trial Brief 52 (citing, inter alia, trial testimony of state legislators).
In sum, the record in this litigation makes clear that the predominant motive underlying the fragmentation of Balderas District 24 was to maximize Republicans’ electoral opportunities and ensure that Congressman Frost was defeated.
Turning now to the effects test I have proposed, plaintiffs in new Districts 6, 24, 36, and 32 could easily meet the three parts of that test because: (1) under the Balderas plan, they lived in District 24 and their candidate of choice (Frost) was the winning candidate; (2) under Plan 1374C, they have been placed in districts that are safe seats for the Republican party, see App. 106 (showing that the Democratic share of the two-party vote in statewide elections from 1996 to 2002 was 40% or less in Districts 6, 24, 26, and 32); and (3) their new districts are less compact than Balderas District 24, see App. 319–320 (compactness scores for districts under the Balderas Plan and Plan 1374C).[Footnote 17]
Justice Kennedy rejects my proposed effects test, as applied in this case, because, in his view Balderas District 24 lacks “any special claim to fairness,” ante, at 36. But my analysis in no way depends on the proposition that Balderas District 24 was fair. The district was more compact than four of the districts that replaced it, and, as explained above, compactness serves important values in the districting process. This is why, in my view, a State that creates more compact districts should enjoy a safe harbor from partisan gerrymandering claims. However, the mere fact that a prior district was unfair should surely not provide a safe harbor for the creation of an even more unfair district. Conversely, a State may of course create less compact districts without violating the Constitution so long as its purpose is not to disadvantage a politically disfavored group. See supra, at 31–32 and n. 13. The reason I focus on Balderas District 24 is not because the district was fair, but because the prior district provides a clear benchmark in analyzing whether plaintiffs have been harmed.
In sum, applying the judicially manageable test set forth in this Part of my opinion reveals that the cracking of Balderas District 24 created several unconstitutional partisan gerrymanders. Even if I believed that Plan 1374C were not invalid in its entirety, I would reverse the judgment below with regard to Districts 6, 24, 26, and 32.
* * *
For the foregoing reasons, although I concur with the majority’s decision to invalidate District 23 under §2 of the Voting Rights Act, I respectfully dissent from the Court’s decision to affirm the judgment below with respect to plaintiffs’ partisan gerrymandering claim. I would reverse with respect to the plan as a whole, and also, more specifically, with respect to Districts 6, 24, 26, and 32.
It was apparently these electoral results that later caused the District Court to state that “the practical effect” of Plan 1151C “was to leave the 1991 Democratic Party gerrymander largely in place as a ‘legal’ plan.” Henderson v. Perry, 399 F. Supp. 2d 756, 768 (ED Tex. 2005); see id., at 768, n. 52. But the existence of ticket-splitting voters hardly demonstrates that Plan 1151C was biased in favor of Democrats. Instead, as noted above, even the State’s expert in this litigation concluded that Plan 1151C was, if anything, biased in favor of Republicans. Nor do the circumstances surrounding the replacement of Plan 1151C suggest that the legislature was motivated by a misimpression that Plan 1151C was unfair to Republicans, and accordingly should be replaced with a more equitable map. Rather, as discussed in detail below, it is clear that the sole motivation for enacting a new districting map was to maximize Republican advantage.Footnote 2
These two standard measures of compactness are the perimeter-to-area score, which compares the relative length of the perimeter of a district to its area, and the smallest circle score, which compares the ratio of space in the district to the space in the smallest circle that could encompass the district. App. 178.Footnote 3
The State suggests that in the process of drawing districts the architects of Plan 1374C frequently followed county lines, made an effort to keep certain entire communities within a given district and otherwise followed certain neutral principles. But these facts are not relevant to the narrow question presented by these cases: Neutral motivations in the implementation of particular features of the redistricting do not qualify the solely partisan motivation behind the basic decision to adopt an entirely unnecessary plan in the first place.Footnote 4
As noted above, rather than identifying any arguably neutral reasons for adopting Plan 1374C, the record establishes a purely partisan single-minded motivation with unmistakable clarity. Therefore, there is no need at this point to discuss standards that would guide judges in enforcing a rule allowing legislatures to be motivated in part by partisan considerations, but which would impose an “obligation not to apply too much partisanship in districting.” Vieth v. Jubelirer,541 U. S. 267, 286 (2004) (plurality opinion). Deciding that 100% is “too much” is not only a manageable decision, but, as explained below, it is also an obviously correct one. Nonetheless, it is worth emphasizing that courts do, in fact, possess the tools to employ standards that permit legislatures to consider partisanship in the redistricting process, but which do not allow legislatures to use partisanship as the predominant motivation for their actions. See Part IV, infra.Footnote 5
See Larios v. Cox, 300 F. Supp. 2d 1320, 1342–1353 (ND Ga. 2004) (per curiam). In Cox, the three-judge DistrictCourt undertook a searching review of the entire record in concluding that the population deviations in the state legislative districts created for the Georgia House and Senate after the release of the 2000 census data were not driven by any traditional redistricting criteria, such as compactness or preserving county lines, but were instead driven by the impermissible factors of regional favoritism and the discriminatory protection of Democratic incumbents. If there were no judicially manageable standards to assess whether a State’s adoption of a redistricting map was based on valid governmental objectives, we would not have summarily affirmed the decision in Cox over the dissent of only one Justice. See 542 U. S. 947; id., at 951 (Scalia, J., dissenting). In addition, as Part III of the Court’s opinion and this Part of my opinion demonstrate, assessing whether a redistricting map has a discriminatory impact on the opportunities for voters and candidates of a particular party to influence the political process is a manageable judicial task.Footnote 6
Although the burdened group at issue in this litigation consists of Democratic voters and candidates, the partisan gerrymandering analysis throughout this opinion would be equally applicable to any “politically coherent group whose members engaged in bloc voting.” Vieth, 541 U. S., at 347 (Souter, J., joined by Ginsburg, J., dissenting).Footnote 7
In the 2004 congressional elections, Republicans won 21 of the 22 seats that had been designed to favor Republicans in Plan 1374C. One Democratic incumbent, Representative Chet Edwards, narrowly defeated (with 51% of the vote) his nonincumbent Republican challenger in a Republican-leaning district; Edwards outspent his challenger, who lacked strong ties to the principal communities in the district. Republicans are likely to spend more money and find a stronger challenger in 2006, which will create a “very significant chance” of a Republican defeating Edwards. App. to Juris. Statement 224a, 226a.Footnote 8
If 10% of Republican voters decided to vote for Democratic candidates, and if there were no other changes in voter turnout or preferences, the Republicans’ share of the statewide vote would be reduced from 58% to 52%.Footnote 9
Justice Kennedy faults proponents of the symmetry standard for not “providing a standard for deciding how much partisan bias is too much,” ante, at 13. But it is this Court, not proponents of the symmetry standard, that has the judicial obligation to answer the question of how much unfairness is too much. It would, of course, be an eminently manageable standard for the Court to conclude that deviations of over 10% from symmetry create a prima facie case of an unconstitutional gerrymander, just as population deviations among districts of more than 10% create such a prima facie case. Or, the Court could conclude that a significant departure from symmetry is one relevant factor in analyzing whether, under the totality of the circumstances, a districting plan is an unconstitutional partisan gerrymander. See n. 11, infra. At any rate, proponents of the symmetry standard have provided a helpful (though certainly not talismanic) tool in this type of litigation. While I appreciate Justice Kennedy’s leaving the door open to the use of the standard in future cases, see ante, at 13, I believe it is the role of this Court, not social scientists, to determine how much partisan dominance is too much.Footnote 10
Safe seats may harm the democratic process in other ways as well. According to one recent article co-authored by a former Chairman of the Federal Election Commission, electoral competition “plainly has a positive effect on the interest and participation of voters in the electoral process.” Potter & Viray, Election Reform: Barriers to Participation, 36 U. Mich. J. L. Reform 547, 575 (2003) (hereinafter Potter & Viray); see also L. Guinier, Tyranny of the Majority 85 (1994). The impact of noncompetitive elections in depressing voter turnout is especially troubling in light of the fact that voter participation in the United States lags behind, often well behind, participation rates in other democratic nations. Potter & Viray 575–576, and n. 200. In addition, the creation of safe seats tends to polarize decisionmaking bodies. See, e.g., Clingman v. Beaver, 544 U. S. 581, 620 (2005) (Stevens, J., joined by Ginsburg, J., dissenting) (noting that safe districts can “increase the bitter partisanship that has already poisoned some of those [legislative] bodies that once provided inspiring examples of courteous adversary debate and deliberation”); Cox, Partisan Gerrymandering and Disaggregated Redistricting, 2004 S. Ct. Rev. 409, 430 (arguing that “safe seats produce more polarized representatives because, by definition, the median voter in a district that is closely divided between the two major parties is more centrist than the median voter in a district dominated by one party”); Raviv, Unsafe Harbors: One Person, One Vote and Partisan Redistricting, 7 U. Pa. J. Const. L. 1001, 1068 (2005) (arguing that safe districts encourage polarization in decisionmaking bodies because representatives from those districts have to cater only to voters from one party). See generally Issacharoff & Karlan, Where to Draw the Line? 153 U. Pa. L. Rev. 541, 574 (providing data about the large percentage of safe seats in recent congressional and state legislative elections, and concluding that “[n]oncompetitive elections threaten both the legitimacy and the vitality of democratic governance”).Footnote 11
In this litigation expert testimony provided the principal evidence about the effects of the plan that satisfy the test Justice Kennedy would impose. In my judgment, however, most statewide challenges to an alleged gerrymander should be evaluated primarily by examining these objective factors: (1) the number of people who have been moved from one district to another, (2) the number of districts that are less compact than their predecessors, (3) the degree to which the new plan departs from other neutral districting criteria, including respect for communities of interest and compliance with the Voting Rights Act, (4) the number of districts that have been cracked in a manner that weakens an opposition party incumbent, (5) the number of districts that include two incumbents from the opposite party, (6) whether the adoption of the plan gave the opposition party, and other groups, a fair opportunity to have input in the redistricting process, (7) the number of seats that are likely to be safe seats for the dominant party, and (8) the size of the departure in the new plan from the symmetry standard.Footnote 12
Justice Breyer has authorized me to state that he agrees with Justice Scalia that compliance with §5 of the Voting Rights Act is also a compelling state interest. See post, at 9. I too agree with Justice Scalia on this point.Footnote 13
If, on the other hand, the State could demonstrate, for example, that the new district was part of a statewide scheme designed to apportion power fairly among politically salient groups, or to enhance the political power of an underrepresented community of interest (such as residents of an economically distressed region), the State would avoid liability even if the results of such statewide districting had predictably partisan effects. See generally Vieth, 541 U. S., at 351–352 (Souter, J., joined by Ginsburg, J., dissenting) (discussing legitimate interests that a State could posit as a defense to a prima facie case of partisan gerrymandering).Footnote 14
This assumption is justified based on counsel’s undisputed representations at oral argument. See Tr. Oral Arg. 35. However, if there were any genuine dispute about whether there are plaintiffs whose residences were previously located in Balderas District 24, but which are now incorporated into Districts 6, 24, 26, and 32, a remand would be appropriate to allow the District Court to address this issue.Footnote 15
In the decision below, the District Court concluded that black voters did not in fact “control” electoral outcomes in District 24. See Session v. Perry, 298 F. Supp. 2d 451, 498 (2004). Even assuming, as Justice Kennedy concludes, see ante, at 34, that the District Court did not commit reversible error in its analysis of this issue, the lack of “control” might be relevant in analyzing plaintiffs’ vote dilution claim under §2, but it is not relevant in evaluating whether Plan 1374C is retrogressive under §5. It is indisputable that, at the very least, Balderas District 24 was a strong influence district for black voters, that is, a district where voters of color can “play a substantial, if not decisive, role in the electoral process.” Georgia v. Ashcroft, 539 U. S. 461, 482 (2003). Accordingly, by dismantling Balderas District 24, and by failing to create a strong influence district elsewhere, Plan 1374C was retrogressive. See 539 U. S., at 482(explaining that, in deciding whether a plan is retrogressive, “a court must examine whether a new plan adds or subtracts ‘influence districts’ ”).Footnote 16
As Justice Kennedy explains, see ante, at 33–36, plaintiffs did, however, challenge District 24 under §2. I am in substantial agreement with Justice Souter’s discussion of this issue. See post, at 3–8. Specifically, I agree with Justice Souter that the “50% rule,” which finds no support in the text, history, or purposes of §2, is not a proper part of the statutory vote dilution inquiry. For the reasons stated in my analysis of the “unique question of law … raised in this appeal,” supra at 11, and in this part of my opinion, however, it is so clear that the cracking of District 24 created an unconstitutional gerrymander that I find it unnecessary to address the statutory issue separately.Footnote 17
Because new District 12, another district that covers portions of former District 24, is more compact than Balderas District 24, voters in new District 12 who previously resided in Balderas District 24 would not be able to bring a successful partisan gerrymandering claim under my proposed test, even though new District 12 is also a safe Republican district. See App. 106, 319–320.
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