NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington,
D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print
goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 18–422, 18–726
_________________
ROBERT A. RUCHO, et al.,
APPELLANTS
18–422
v.
COMMON CAUSE, et al.; AND
on appeal from the united states district
court for the middle district of north carolina
LINDA H. LAMONE, et al.,
APPELLANTS
18–726
v.
O. JOHN BENISEK, et al.
on appeal from the united states district
court for the district of maryland
[June 27, 2019]
Chief Justice Roberts delivered the opinion of
the Court.
Voters and other plaintiffs in North Carolina
and Maryland challenged their States’ congressional districting
maps as unconstitutional partisan gerrymanders. The North Carolina
plaintiffs complained that the State’s districting plan
discriminated against Democrats; the Maryland plaintiffs complained
that their State’s plan discriminated against Republicans. The
plaintiffs alleged that the gerrymandering violated the First
Amendment, the Equal Protection Clause of the Fourteenth Amendment,
the Elections Clause, and Article I, §2, of the Constitution. The
District Courts in both cases ruled in favor of the plaintiffs, and
the defendants appealed directly to this Court.
These cases require us to consider once again
whether claims of excessive partisanship in districting are
“justiciable”—that is, properly suited for resolution by the
federal courts. This Court has not previously struck down a
districting plan as an unconstitutional partisan gerrymander, and
has struggled without success over the past several decades to
discern judicially manageable standards for deciding such claims.
The districting plans at issue here are highly partisan, by any
measure. The question is whether the courts below appropriately
exercised judicial power when they found them unconstitutional as
well.
I
A
The first case involves a challenge to the
congressional redistricting plan enacted by the
Republican-controlled North Carolina General Assembly in 2016.
Rucho v.
Common Cause, No. 18–422. The Republican
legislators leading the redistricting effort instructed their
mapmaker to use political data to draw a map that would produce a
congressional delegation of ten Republicans and three Democrats.
318 F. Supp. 3d 777, 807–808 (MDNC 2018). As one of the two
Republicans chairing the redistricting committee stated, “I think
electing Republicans is better than electing Democrats. So I drew
this map to help foster what I think is better for the country.”
Id., at 809. He further explained that the map was drawn
with the aim of electing ten Republicans and three Democrats
because he did “not believe it [would be] possible to draw a map
with 11 Republicans and 2 Democrats.”
Id., at 808. One Demo-
cratic state senator objected that entrenching the 10–3 advantage
for Republicans was not “fair, reasonable, [or] balanced” because,
as recently as 2012, “Democratic congressional candidates had
received more votes on a statewide basis than Republican
candidates.”
Ibid. The General Assembly was not swayed by
that objection and approved the 2016 Plan by a party-line vote.
Id., at 809.
In November 2016, North Carolina conducted
congressional elections using the 2016 Plan, and Republican
candidates won 10 of the 13 congressional districts.
Id., at
810. In the 2018 elections, Republican candidates won nine
congressional districts, while Democratic candidates won three. The
Republican candidate narrowly prevailed in the remaining district,
but the State Board of Elections called a new election after
allegations of fraud.
This litigation began in August 2016, when the
North Carolina Democratic Party, Common Cause (a nonprofit
organization), and 14 individual North Carolina voters sued the two
lawmakers who had led the redistricting effort and other state
defendants in Federal District Court. Shortly thereafter, the
League of Women Voters of North Carolina and a dozen additional
North Carolina voters filed a similar complaint. The two cases were
consolidated.
The plaintiffs challenged the 2016 Plan on
multiple constitutional grounds. First, they alleged that the Plan
violated the Equal Protection Clause of the Fourteenth Amendment by
intentionally diluting the electoral strength of Democratic voters.
Second, they claimed that the Plan violated their First Amendment
rights by retaliating against supporters of Democratic candidates
on the basis of their political beliefs. Third, they asserted that
the Plan usurped the right of “the People” to elect their preferred
candidates for Congress, in violation of the requirement in Article
I, §2, of the Constitution that Members of the House of
Representatives be chosen “by the People of the several States.”
Finally, they alleged that the Plan violated the Elections Clause
by exceeding the State’s delegated authority to prescribe the
“Times, Places and Manner of holding Elections” for Members of
Congress.
After a four-day trial, the three-judge District
Court unanimously concluded that the 2016 Plan violated the Equal
Protection Clause and Article I of the Constitution. The court
further held, with Judge Osteen dissenting, that the Plan violated
the First Amendment.
Common Cause v.
Rucho, 279
F. Supp. 3d 587 (MDNC 2018). The defendants appealed directly
to this Court under 28 U. S. C. §1253.
While that appeal was pending, we decided
Gill v.
Whitford, 585 U. S. ___ (2018), a
partisan gerrymandering case out of Wisconsin. In that case, we
held that a plaintiff asserting a partisan gerrymandering claim
based on a theory of vote dilution must establish standing by
showing he lives in an allegedly “cracked” or “packed” district.
Id., at ___ (slip op., at 17). A “cracked” district is one
in which a party’s supporters are divided among multiple districts,
so that they fall short of a majority in each; a “packed” district
is one in which a party’s supporters are highly concentrated, so
they win that district by a large margin, “wasting” many votes that
would improve their chances in others.
Id., at ___–___ (slip
op., at 3–4).
After deciding
Gill, we remanded the
present case for further consideration by the District Court. 585
U. S. ___ (2018). On remand, the District Court again struck
down the 2016 Plan. 318 F. Supp. 3d 777. It found standing and
concluded that the case was appropriate for judicial resolution. On
the merits, the court found that “the General Assembly’s
predominant intent was to discriminate against voters who supported
or were likely to support non-Republican candidates,” and to
“entrench Republican candidates” through widespread cracking and
packing of Democratic voters.
Id., at 883–884. The court
rejected the defendants’ arguments that the distribution of
Republican and Democratic voters throughout North Carolina and the
interest in protecting incumbents neutrally explained the 2016
Plan’s discriminatory effects.
Id., at 896–899. In the end,
the District Court held that 12 of the 13 districts constituted
partisan gerrymanders that violated the Equal Protection Clause.
Id., at 923.
The court also agreed with the plaintiffs that
the 2016 Plan discriminated against them because of their political
speech and association, in violation of the First Amendment.
Id., at 935. Judge Osteen dissented with respect to that
ruling.
Id., at 954–955. Finally, the District Court
concluded that the 2016 Plan violated the Elections Clause and
Article I, §2.
Id., at 935–941. The District Court enjoined
the State from using the 2016 Plan in any election after the
November 2018 general election.
Id., at 942.
The defendants again appealed to this Court, and
we postponed jurisdiction. 586 U. S. ___ (2019).
B
The second case before us is
Lamone v.
Benisek, No. 18–726. In 2011, the Maryland
Legislature—dominated by Democrats—undertook to redraw the lines of
that State’s eight congressional districts. The Governor at the
time, Democrat Martin O’Malley, led the process. He appointed a
redistricting committee to help redraw the map, and asked
Congressman Steny Hoyer, who has described himself as a “serial
gerrymanderer,” to advise the committee. 348 F. Supp. 3d 493,
502 (Md. 2018). The Governor later testified that his aim was to
“use the redistricting process to change the overall composition of
Maryland’s congressional delegation to 7 Democrats and 1 Republican
by flipping” one district.
Ibid. “[A] decision was made to
go for the Sixth,”
ibid., which had been held by a
Republican for nearly two decades. To achieve the required equal
population among districts, only about 10,000 residents needed to
be removed from that district.
Id., at 498. The 2011 Plan
accomplished that by moving roughly 360,000 voters out of the Sixth
District and moving 350,000 new voters in. Overall, the Plan
reduced the number of registered Republicans in the Sixth District
by about 66,000 and increased the number of registered Democrats by
about 24,000.
Id., at 499–501. The map was adopted by a
party-line vote.
Id., at 506. It was used in the 2012
election and succeeded in flipping the Sixth District. A Democrat
has held the seat ever since.
In November 2013, three Maryland voters filed
this lawsuit. They alleged that the 2011 Plan violated the First
Amendment, the Elections Clause, and Article I, §2, of the
Constitution. After considerable procedural skirmishing and
litigation over preliminary relief, the District Court entered
summary judgment for the plaintiffs. 348 F. Supp. 3d 493. It
concluded that the plaintiffs’ claims were justiciable, and that
the Plan violated the First Amendment by diminishing their “ability
to elect their candidate of choice” because of their party
affiliation and voting history, and by burdening their
associational rights.
Id., at 498. On the latter point, the
court relied upon findings that Republicans in the Sixth District
“were burdened in fundraising, attracting volunteers, campaigning,
and generating interest in voting in an atmosphere of general
confusion and apathy.”
Id., at 524.
The District Court permanently enjoined the
State from using the 2011 Plan and ordered it to promptly adopt a
new plan for the 2020 election.
Id., at 525. The defendants
appealed directly to this Court under 28 U. S. C. §1253.
We postponed jurisdiction. 586 U. S. ___ (2019).
II
A
Article III of the Constitution limits federal
courts to deciding “Cases” and “Controversies.” We have understood
that limitation to mean that federal courts can address only
questions “historically viewed as capable of resolution through the
judicial process.”
Flast v.
Cohen,
392 U.S.
83, 95 (1968). In these cases we are asked to decide an
important question of constitutional law. “But before we do so, we
must find that the question is presented in a ‘case’ or
‘controversy’ that is, in James Madison’s words, ‘of a Judiciary
Nature.’ ”
DaimlerChrysler Corp. v.
Cuno,
547 U.S.
332, 342 (2006) (quoting 2 Records of the Federal Convention of
1787, p. 430 (M. Farrand ed. 1966)).
Chief Justice Marshall famously wrote that it is
“the province and duty of the judicial department to say what the
law is.”
Marbury v.
Madison, 1 Cranch 137, 177
(1803). Sometimes, however, “the law is that the judicial
department has no business entertaining the claim of
unlawfulness—because the question is entrusted to one of the
political branches or involves no judicially enforceable rights.”
Vieth v.
Jubelirer,
541 U.S.
267, 277 (2004) (plurality opinion). In such a case the claim
is said to present a “political question” and to be
nonjusticiable—outside the courts’ competence and therefore beyond
the courts’ jurisdiction.
Baker v.
Carr,
369 U.S.
186, 217 (1962). Among the political question cases the Court
has identified are those that lack “judicially discoverable and
manageable standards for resolving [them].”
Ibid.
Last Term in
Gill v.
Whitford, we
reviewed our partisan gerrymandering cases and concluded that those
cases “leave unresolved whether such claims may be brought.” 585
U. S., at ___ (slip op., at 13). This Court’s authority to
act, as we said in
Gill, is “grounded in and limited by the
necessity of resolving, according to legal principles, a
plaintiff’s particular claim of legal right.”
Ibid. The
question here is whether there is an “appropriate role for the
Federal Judiciary” in remedying the problem of partisan
gerrymandering—whether such claims are claims of
legal
right, resolvable according to
legal principles, or
political questions that must find their resolution elsewhere.
Id., at ___ (slip op., at 8).
B
Partisan gerrymandering is nothing new. Nor is
frustration with it. The practice was known in the Colonies prior
to Independence, and the Framers were familiar with it at the time
of the drafting and ratification of the Constitution. See
Vieth, 541 U. S., at 274 (plurality opinion). During
the very first congressional elections, George Washington and his
Federalist allies accused Patrick Henry of trying to gerrymander
Virginia’s districts against their candidates—in particular James
Madison, who ultimately prevailed over fellow future President
James Monroe. Hunter, The First Gerrymander? 9 Early Am. Studies
792–794, 811 (2011). See 5 Writings of Thomas Jefferson 71 (P. Ford
ed. 1895) (Letter to W. Short (Feb. 9, 1789)) (“Henry has so
modelled the districts for representatives as to tack Orange
[county] to counties where he himself has great influence that
Madison may not be elected into the lower federal house”).
In 1812, Governor of Massachusetts and future
Vice President Elbridge Gerry notoriously approved congressional
districts that the legislature had drawn to aid the
Democratic-Republican Party. The moniker “gerrymander” was born
when an outraged Federalist newspaper observed that one of the
misshapen districts resembled a salamander. See
Vieth, 541
U. S., at 274 (plurality opinion); E. Griffith, The Rise and
Development of the Gerrymander 17–19 (1907). “By 1840, the
gerrymander was a recognized force in party politics and was
generally attempted in all legislation enacted for the formation of
election districts. It was generally conceded that each party would
attempt to gain power which was not proportionate to its numerical
strength.”
Id., at 123.
The Framers addressed the election of
Representatives to Congress in the Elections Clause. Art. I,
§4, cl. 1. That provision assigns to state legislatures the
power to prescribe the “Times, Places and Manner of holding
Elections” for Members of Congress, while giving Congress the power
to “make or alter” any such regulations. Whether to give that
supervisory authority to the National Government was debated at the
Constitutional Convention. When those opposed to such congressional
oversight moved to strike the relevant language, Madison came to
its defense:
“[T]he State Legislatures will sometimes
fail or refuse to consult the common interest at the expense of
their local coveniency or prejudices. . . . Whenever
the State Legislatures had a favorite measure to carry, they would
take care so to mould their regulations as to favor the candidates
they wished to succeed.” 2 Records of the Federal Convention of
1787, at 240–241.
During the subsequent fight for ratification,
the provision remained a subject of debate. Antifederalists
predicted that Congress’s power under the Elections Clause would
allow Congress to make itself “omnipotent,” setting the “time” of
elections as never or the “place” in difficult to reach corners of
the State. Federalists responded that, among other justifications,
the revisionary power was necessary to counter state legislatures
set on undermining fair representation, including through
malapportionment. M. Klarman, The Framers’ Coup: The Making of the
United States Constitution 340–342 (2016). The Federalists were,
for example, concerned that newly developing population centers
would be deprived of their proper electoral weight, as some cities
had been in Great Britain. See 6 The Documentary History of the
Ratification of the Constitution: Massachusetts 1278–1279 (J.
Kaminski & G. Saladino eds. 2000).
Congress has regularly exercised its Elections
Clause power, including to address partisan gerrymandering. The
Apportionment Act of 1842, which required single-member districts
for the first time, specified that those districts be “composed of
contiguous territory,” Act of June 25, 1842, ch. 47, 5Stat. 491, in
“an attempt to forbid the practice of the gerrymander,” Griffith,
supra, at 12. Later statutes added requirements of
compactness and equality of population. Act of Jan. 16, 1901, ch.
93, §3, 31Stat. 733; Act of Feb. 2, 1872, ch. 11, §2, 17Stat. 28.
(Only the single member district requirement remains in place
today. 2 U. S. C. §2c.) See
Vieth, 541 U. S.,
at 276 (plurality opinion). Congress also used its Elections Clause
power in 1870, enacting the first comprehensive federal statute
dealing with elections as a way to enforce the Fifteenth Amendment.
Force Act of 1870, ch. 114, 16Stat. 140. Starting in the 1950s,
Congress enacted a series of laws to protect the right to vote
through measures such as the suspension of literacy tests and the
prohibition of English-only elections. See,
e.g., 52
U. S. C. §10101
et seq.
Appellants suggest that, through the Elections
Clause, the Framers set aside electoral issues such as the one
before us as questions that only Congress can resolve. See
Baker, 369 U. S., at 217. We do not agree. In two
areas—one-person, one-vote and racial gerrymandering—our cases have
held that there is a role for the courts with respect to at least
some issues that could arise from a State’s drawing of
congressional districts. See
Wesberry v.
Sanders,
376 U.S. 1
(1964);
Shaw v.
Reno,
509 U.S.
630 (1993) (
Shaw I ).
But the history is not irrelevant. The Framers
were aware of electoral districting problems and considered what to
do about them. They settled on a characteristic approach, assigning
the issue to the state legislatures, expressly checked and balanced
by the Federal Congress. As Alexander Hamilton explained, “it will
. . . not be denied that a discretionary power over
elections ought to exist somewhere. It will, I presume, be as
readily conceded that there were only three ways in which this
power could have been reasonably modified and disposed: that it
must either have been lodged wholly in the national legislature, or
wholly in the State legislatures, or primarily in the latter, and
ultimately in the former.” The Federalist No. 59, p. 362 (C.
Rossiter ed. 1961). At no point was there a suggestion that the
federal courts had a role to play. Nor was there any indication
that the Framers had ever heard of courts doing such a thing.
C
Courts have nevertheless been called upon to
resolve a variety of questions surrounding districting. Early on,
doubts were raised about the competence of the federal courts to
resolve those questions. See
Wood v.
Broom,
287 U.S. 1
(1932);
Colegrove v.
Green,
328
U.S. 549 (1946).
In the leading case of
Baker v.
Carr, voters in Tennessee complained that the State’s
districting plan for state representatives “debase[d]” their votes,
because the plan was predicated on a 60-year-old census that no
longer reflected the distribution of population in the State. The
plaintiffs argued that votes of people in overpopulated districts
held less value than those of people in less-populated districts,
and that this inequality violated the Equal Protection Clause of
the Fourteenth Amendment. The District Court dismissed the action
on the ground that the claim was not justiciable, relying on this
Court’s precedents, including
Colegrove. Baker v.
Carr,
179 F. Supp. 824, 825, 826 (MD Tenn. 1959). This Court
reversed. It identified various considerations relevant to
determining whether a claim is a nonjusticiable political question,
including whether there is “a lack of judicially discover- able and
manageable standards for resolving it.” 369 U. S., at 217. The
Court concluded that the claim of population inequality among
districts did not fall into that category, because such a claim
could be decided under basic equal protection principles.
Id., at 226. In
Wesberry v.
Sanders, the Court
extended its ruling to malapportionment of congressional districts,
holding that Article I, §2, required that “one man’s vote in a
congressional election is to be worth as much as another’s.” 376
U. S., at 8.
Another line of challenges to districting plans
has focused on race. Laws that explicitly discriminate on the basis
of race, as well as those that are race neutral on their face but
are unexplainable on grounds other than race, are of course
presumptively invalid. The Court applied those principles to
electoral boundaries in
Gomillion v.
Lightfoot,
concluding that a challenge to an “uncouth twenty-eight sided”
municipal boundary line that excluded black voters from city
elections stated a constitutional claim.
364
U.S. 339, 340 (1960). In
Wright v.
Rockefeller,
376 U.S.
52 (1964), the Court extended the reasoning of
Gomillion
to congressional districting. See
Shaw I, 509 U. S., at
645.
Partisan gerrymandering claims have proved far
more difficult to adjudicate. The basic reason is that, while it is
illegal for a jurisdiction to depart from the one-person, one-vote
rule, or to engage in racial discrimination in districting, “a
jurisdiction may engage in constitutional political
gerrymandering.”
Hunt v.
Cromartie,
526 U.S.
541, 551 (1999) (citing
Bush v.
Vera,
517 U.S.
952, 968 (1996);
Shaw v.
Hunt,
517 U.S.
899, 905 (1996) (
Shaw II);
Miller v.
Johnson,
515 U.S.
900, 916 (1995);
Shaw I, 509 U. S., at 646).
See also
Gaffney v.
Cummings,
412
U.S. 735, 753 (1973) (recognizing that “[p]olitics and
political considerations are inseparable from districting and
apportionment”).
To hold that legislators cannot take partisan
interests into account when drawing district lines would
essentially countermand the Framers’ decision to entrust
districting to political entities. The “central problem” is not
determining whether a jurisdiction has engaged in partisan
gerrymandering. It is “determining when political gerrymandering
has gone too far.”
Vieth, 541 U. S., at 296 (plurality
opinion). See
League of United Latin American Citizens v.
Perry,
548 U.S.
399, 420 (2006) (
LULAC) (opinion of Kennedy, J.)
(difficulty is “providing a standard for deciding how much partisan
dominance is too much”).
We first considered a partisan gerrymandering
claim in
Gaffney v.
Cummings in 1973. There we
rejected an equal protection challenge to Connecticut’s
redistricting plan, which “aimed at a rough scheme of proportional
representation of the two major political parties” by “wiggl[ing]
and joggl[ing] boundary lines” to create the appropriate number of
safe seats for each party. 412 U. S., at 738, 752, n. 18
(internal quotation marks omitted). In upholding the State’s plan,
we reasoned that districting “inevitably has and is intended to
have substantial political consequences.”
Id., at 753.
Thirteen years later, in
Davis v.
Bandemer, we addressed a claim that Indiana Republicans had
cracked and packed Democrats in violation of the Equal Protection
Clause.
478 U.S.
109, 116–117 (1986) (plurality opinion). A majority of the
Court agreed that the case was justiciable, but the Court
splintered over the proper standard to apply. Four Justices would
have required proof of “intentional discrimination against an
identifiable political group and an actual discriminatory effect on
that group.”
Id., at 127. Two Justices would have focused on
“whether the boundaries of the voting districts have been distorted
deliberately and arbitrarily to achieve illegitimate ends.”
Id., at 165 (Powell, J., concurring in part and dissenting
in part). Three Justices, meanwhile, would have held that the Equal
Protection Clause simply “does not supply judicially manageable
standards for resolving purely political gerrymandering claims.”
Id., at 147 (O’Connor, J., concurring in judgment). At the
end of the day, there was
“no ‘Court’ for a standard that
properly should be applied in determining whether a challenged
redistricting plan is an unconstitutional partisan political
gerrymander.”
Id., at 185, n. 25 (opinion of Powell,
J.). In any event, the Court held that the plaintiffs had failed to
show that the plan violated the Constitution.
Eighteen years later, in
Vieth, the
plaintiffs complained that Pennsylvania’s legislature “ignored all
traditional redistricting criteria, including the preservation of
local government boundaries,” in order to benefit Republican
congressional candidates. 541 U. S., at 272–273 (plurality
opinion) (brackets omitted). Justice Scalia wrote for a
four-Justice plurality. He would have held that the plaintiffs’
claims were nonjusticiable because there was no “judicially
discernible and manageable standard” for deciding them.
Id.,
at 306. Justice Kennedy, concurring in the judgment, noted “the
lack of comprehensive and neutral principles for drawing electoral
boundaries [and] the absence of rules to limit and confine judicial
intervention.”
Id., at 306–307
. He nonetheless left
open the possibility that “in another case a standard might
emerge.”
Id., at 312. Four Justices dissented.
In
LULAC, the plaintiffs challenged a
mid-decade redistricting map approved by the Texas Legislature.
Once again a majority of the Court could not find a justiciable
standard for resolving the plaintiffs’ partisan gerrymandering
claims. See 548 U. S., at 414 (noting that the “disagreement
over what substantive standard to apply” that was evident in
Bandemer “persists”).
As we summed up last Term in
Gill, our
“considerable efforts in
Gaffney,
Bandemer,
Vieth, and
LULAC leave unresolved whether
. . . claims [of legal right] may be brought in cases
involving allegations of partisan gerrymandering.” 585 U. S.,
at ___ (slip op., at 13). Two “threshold questions” remained:
standing, which we addressed in
Gill, and “whether [such]
claims are justiciable.”
Ibid.
III
A
In considering whether partisan gerrymandering
claims are justiciable, we are mindful of Justice Kennedy’s counsel
in
Vieth: Any standard for resolving such claims must be
grounded in a “limited and precise rationale” and be “clear,
manageable, and politically neutral.” 541 U. S., at 306–308
(opinion concurring in judgment). An important reason for those
careful constraints is that, as a Justice with extensive experience
in state and local politics put it, “[t]he opportunity to control
the drawing of electoral boundaries through the legislative process
of apportionment is a critical and traditional part of politics in
the United States.”
Bandemer, 478 U. S., at 145
(opinion of O’Connor, J.). See
Gaffney, 412 U. S., at
749 (observing that districting implicates “fundamental ‘choices
about the nature of representation’ ” (quoting
Burns v.
Richardson,
384 U.S.
73, 92 (1966))). An expansive standard requiring “the
correction of all election district lines drawn for partisan
reasons would commit federal and state courts to unprecedented
intervention in the American political process,”
Vieth, 541
U. S., at 306 (opinion of Kennedy, J.).
As noted, the question is one of degree: How to
“provid[e] a standard for deciding how much partisan dominance is
too much.”
LULAC, 548 U. S., at 420 (opinion of
Kennedy, J.). And it is vital in such circumstances that the Court
act only in accord with especially clear standards: “With uncertain
limits, intervening courts—even when proceeding with best
intentions—would risk assuming political, not legal, responsibility
for a process that often produces ill will and distrust.”
Vieth, 541 U. S., at 307 (opinion of Kennedy, J.). If
federal courts are to “inject [themselves] into the most heated
partisan issues” by adjudicating partisan gerrymandering claims,
Bandemer, 478 U. S., at 145 (opinion of O’Connor, J.),
they must be armed with a standard that can reliably differentiate
unconstitutional from “constitutional political gerrymandering.”
Cromartie, 526 U. S., at 551.
B
Partisan gerrymandering claims rest on an
instinct that groups with a certain level of political support
should enjoy a commensurate level of political power and influence.
Explicitly or implicitly, a districting map is alleged to be
unconstitutional because it makes it too difficult for one party to
translate statewide support into seats in the legislature. But such
a claim is based on a “norm that does not exist” in our electoral
system—“statewide elections for representatives along party lines.”
Bandemer, 478 U. S., at 159 (opinion of O’Connor,
J.).
Partisan gerrymandering claims invariably sound
in a desire for proportional representation. As Justice O’Connor
put it, such claims are based on “a conviction that the greater the
departure from proportionality, the more suspect an apportionment
plan becomes.”
Ibid. “Our cases, however, clearly foreclose
any claim that the Constitution requires proportional
representation or that legislatures in reapportioning must draw
district lines to come as near as possible to allocating seats to
the contending parties in proportion to what their anticipated
statewide vote will be.”
Id., at 130 (plurality opinion).
See
Mobile v.
Bolden,
446 U.S.
55, 75–76 (1980) (plurality opinion) (“The Equal Protection
Clause of the Fourteenth Amendment does not require proportional
representation as an imperative of political organization.”).
The Founders certainly did not think
proportional representation was required. For more than 50 years
after ratification of the Constitution, many States elected their
congressional representatives through at-large or “general ticket”
elections. Such States typically sent single-party delegations to
Congress. See E. Engstrom, Partisan Gerry- mandering and the
Construction of American Democracy 43–51 (2013). That meant that a
party could garner nearly half of the vote statewide and wind up
without any seats in the congressional delegation. The Whigs in
Alabama suffered that fate in 1840: “their party garnered 43
percent of the statewide vote, yet did not receive a single seat.”
Id., at 48. When Congress required single-member districts
in the Apportionment Act of 1842, it was not out of a general sense
of fairness, but instead a (mis)calculation by the Whigs that such
a change would improve their electoral prospects.
Id., at
43–44.
Unable to claim that the Constitution requires
proportional representation outright, plaintiffs inevitably ask the
courts to make their own political judgment about how much
representation particular political parties
deserve—based on
the votes of their supporters—and to rearrange the challenged
districts to achieve that end. But federal courts are not equipped
to apportion political power as a matter of fairness, nor is there
any basis for concluding that they were authorized to do so. As
Justice Scalia put it for the plurality in
Vieth:
“ ‘Fairness’ does not seem to us a
judicially manage- able standard. . . . Some
criterion more solid and more demonstrably met than that seems to
us necessary to enable the state legislatures to discern the limits
of their districting discretion, to meaningfully constrain the
discretion of the courts, and to win public acceptance for the
courts’ intrusion into a process that is the very foundation of
democratic decisionmaking.” 541 U. S., at 291.
The initial difficulty in settling on a “clear,
manageable and politically neutral” test for fairness is that it is
not even clear what fairness looks like in this context. There is a
large measure of “unfairness” in any winner-take-all system.
Fairness may mean a greater number of competitive districts. Such a
claim seeks to undo packing and cracking so that supporters of the
disadvantaged party have a better shot at electing their preferred
candidates. But making as many districts as possible more
competitive could be a recipe for disaster for the disadvantaged
party. As Justice White has pointed out, “[i]f all or most of the
districts are competitive . . . even a narrow statewide
preference for either party would produce an overwhelming majority
for the winning party in the state legislature.”
Bandemer,
478 U. S., at 130 (plurality opinion).
On the other hand, perhaps the ultimate
objective of a “fairer” share of seats in the congressional
delegation is most readily achieved by yielding to the
gravitational pull of proportionality and engaging in cracking and
packing, to ensure each party its “appropriate” share of “safe”
seats. See
id., at 130–131 (“To draw district lines to
maximize the representation of each major party would require
creating as many safe seats for each party as the demographic and
predicted political characteristics of the State would permit.”);
Gaffney, 412 U. S., at 735–738. Such an approach,
however, comes at the expense of competitive districts and of
individuals in districts allocated to the opposing party.
Or perhaps fairness should be measured by
adherence to “traditional” districting criteria, such as
maintaining political subdivisions, keeping communities of interest
together, and protecting incumbents. See Brief for Bipartisan Group
of Current and Former Members of the House of Representatives as
Amici Curiae; Brief for Professor Wesley Pegden et al.
as
Amici Curiae in No. 18–422. But protecting incumbents,
for example, enshrines a particular partisan distribution. And the
“natural political geography” of a State—such as the fact that
urban electoral districts are often dominated by one political
party—can itself lead to inherently packed districts. As Justice
Kennedy has explained, traditional criteria such as compactness and
contiguity “cannot promise political neutrality when used as the
basis for relief. Instead, it seems, a decision under these
standards would unavoidably have significant political effect,
whether intended or not.”
Vieth, 541 U. S., at 308–309
(opinion concurring in judgment). See
id., at 298 (plurality
opinion) (“[P]acking and cracking, whether intentional or no, are
quite consistent with adherence to compactness and respect for
political subdivision lines”).
Deciding among just these different visions of
fairness (you can imagine many others) poses basic questions that
are political, not legal. There are no legal standards discernible
in the Constitution for making such judgments, let alone limited
and precise standards that are clear, manageable, and politically
neutral. Any judicial decision on what is “fair” in this context
would be an “unmoored determination” of the sort characteristic of
a political question beyond the competence of the federal courts.
Zivotofsky v.
Clinton,
566 U.S.
189, 196 (2012).
And it is only after determining how to define
fairness that you can even begin to answer the determinative
question: “How much is too much?” At what point does permissible
partisanship become unconstitutional? If compliance with
traditional districting criteria is the fairness touchstone, for
example, how much deviation from those criteria is constitutionally
acceptable and how should mapdrawers prioritize competing criteria?
Should a court “reverse gerrymander” other parts of a State to
counteract “natural” gerrymandering caused, for example, by the
urban concentration of one party? If a districting plan protected
half of the incumbents but redistricted the rest into head to head
races, would that be constitutional? A court would have to rank the
relative importance of those traditional criteria and weigh how
much deviation from each to allow.
If a court instead focused on the respective
number of seats in the legislature, it would have to decide the
ideal number of seats for each party and determine at what point
deviation from that balance went too far. If a 5–3 allocation
corresponds most closely to statewide vote totals, is a 6–2
allocation permissible, given that legislatures have the authority
to engage in a certain degree of partisan gerrymandering? Which
seats should be packed and which cracked? Or if the goal is as many
competitive districts as possible, how close does the split need to
be for the district to be considered competitive? Presumably not
all districts could qualify, so how to choose? Even assuming the
court knew which version of fairness to be looking for, there are
no discernible and manageable standards for deciding whether there
has been a violation. The questions are “unguided and ill suited to
the development of judicial standards,”
Vieth, 541
U. S., at 296 (plurality opinion), and “results from one
gerrymandering case to the next would likely be disparate and
inconsistent,”
id., at 308 (opinion of Kennedy, J.).
Appellees contend that if we can adjudicate
one-person, one-vote claims, we can also assess partisan
gerrymandering claims. But the one-person, one-vote rule is
relatively easy to administer as a matter of math. The same cannot
be said of partisan gerrymandering claims, because the Constitution
supplies no objective measure for assessing whether a districting
map treats a political party fairly. It hardly follows from the
principle that each person must have an equal say in the election
of representatives that a person is entitled to have his political
party achieve representation in some way commensurate to its share
of statewide support.
More fundamentally, “vote dilution” in the
one-person, one-vote cases refers to the idea that each vote must
carry equal weight. In other words, each representative must be
accountable to (approximately) the same number of constituents.
That requirement does not extend to political parties. It does not
mean that each party must be influential in proportion to its
number of supporters. As we stated unanimously in
Gill,
“this Court is not responsible for vindicating generalized partisan
preferences. The Court’s constitutionally prescribed role is to
vindicate the individual rights of the people appearing before it.”
585 U. S., at ___ (slip op., at 21). See also
Bandemer,
478 U. S., at 150 (opinion of O’Connor, J.) (“[T]he Court has
not accepted the argument that an ‘asserted entitlement to group
representation’ . . . can be traced to the one person,
one vote principle.” (quoting
Bolden, 446 U. S., at
77)).[
1]
Nor do our racial gerrymandering cases provide
an appropriate standard for assessing partisan gerrymandering.
“[N]othing in our case law compels the conclusion that racial and
political gerrymanders are subject to precisely the same
constitutional scrutiny. In fact, our country’s long and persistent
history of racial discrimination in voting—as well as our
Fourteenth Amendment jurisprudence, which always has reserved the
strictest scrutiny for discrimination on the basis of race—would
seem to compel the opposite conclusion.”
Shaw I, 509
U. S., at 650 (citation omitted). Unlike partisan
gerrymandering claims, a racial gerrymandering claim does not ask
for a fair share of political power and influence, with all the
justiciability conundrums that entails. It asks instead for the
elimination of a racial classification. A partisan gerrymandering
claim cannot ask for the elimination of partisanship.
IV
Appellees and the dissent propose a number of
“tests” for evaluating partisan gerrymandering claims, but none
meets the need for a limited and precise standard that is
judicially discernible and manageable. And none provides a solid
grounding for judges to take the extraordinary step of reallocating
power and influence between political parties.
A
The
Common Cause District Court
concluded that all but one of the districts in North Carolina’s
2016 Plan violated the Equal Protection Clause by intentionally
diluting the voting strength of Democrats. 318 F. Supp. 3d, at
923. In reaching that result the court first required the
plaintiffs to prove “that a legislative mapdrawer’s predominant
purpose in drawing the lines of a particular district was to
‘subordinate adherents of one political party and entrench a rival
party in power.’ ”
Id., at 865 (quoting
Arizona
State Legislature v.
Arizona Independent Redistricting
Comm’n, 576 U. S. ___, ___ (2015) (slip op., at 1)). The
District Court next required a showing “that the dilution of the
votes of supporters of a disfavored party in a particular
district—by virtue of cracking or packing—is likely to persist in
subsequent elections such that an elected representative from the
favored party in the district will not feel a need to be responsive
to constituents who support the disfavored party.” 318
F. Supp. 3d, at 867. Finally, after a prima facie showing of
partisan vote dilution, the District Court shifted the burden to
the defendants to prove that the discriminatory effects are
“attributable to a legitimate state interest or other neutral
explanation.”
Id., at 868.
The District Court’s “predominant intent” prong
is borrowed from the racial gerrymandering context. In racial
gerrymandering cases, we rely on a “predominant intent” inquiry to
determine whether race was, in fact, the reason particular district
boundaries were drawn the way they were. If district lines were
drawn for the purpose of separating racial groups, then they are
subject to strict scrutiny because “race-based decisionmaking is
inherently suspect.”
Miller, 515 U. S., at 915. See
Bush, 517 U. S., at 959 (principal opinion). But
determining that lines were drawn on the basis of partisanship does
not indicate that the districting was improper. A permissible
intent—securing partisan advantage—does not become constitutionally
impermissible, like racial discrimination, when that permissible
intent “predominates.”
The District Court tried to limit the reach of
its test by requiring plaintiffs to show, in addition to
predominant partisan intent, that vote dilution “is likely to
persist” to such a degree that the elected representative will feel
free to ignore the concerns of the supporters of the minority
party. 318 F. Supp. 3d, at 867. But “[t]o allow district
courts to strike down apportionment plans on the basis of their
prognostications as to the outcome of future elections
. . . invites ‘findings’ on matters as to which neither
judges nor anyone else can have any confidence.”
Bandemer,
478 U. S., at 160 (opinion of O’Connor, J.). See
LULAC,
548 U. S., at 420 (opinion of Kennedy, J.) (“[W]e are wary of
adopting a constitutional standard that invalidates a map based on
unfair results that would occur in a hypothetical state of
affairs.”). And the test adopted by the
Common Cause court
requires a far more nuanced prediction than simply who would
prevail in future political contests. Judges must forecast with
unspecified certainty whether a prospective winner will have a
margin of victory sufficient to permit him to ignore the supporters
of his defeated opponent (whoever that may turn out to be). Judges
not only have to pick the winner—they have to beat the point
spread.
The appellees assure us that “the persistence of
a party’s advantage may be shown through sensitivity testing:
probing how a plan would perform under other plausible electoral
conditions.” Brief for Appellees League of Women Voters of North
Carolina et al. in No. 18–422, p. 55. See also 318
F. Supp. 3d, at 885. Experience proves that accurately
predicting electoral outcomes is not so simple, either because the
plans are based on flawed assumptions about voter preferences and
behavior or because demographics and priorities change over time.
In our two leading partisan gerrymandering cases themselves, the
predictions of durability proved to be dramatically wrong. In 1981,
Republicans controlled both houses of the Indiana Legislature as
well as the governorship. Democrats challenged the state
legislature districting map enacted by the Republicans. This Court
in
Bandemer rejected that challenge, and just months later
the Democrats increased their share of House seats in the 1986
elections. Two years later the House was split 50–50 between
Democrats and Republicans, and the Democrats took control of the
chamber in 1990. Democrats also challenged the Pennsylvania
congressional districting plan at issue in
Vieth. Two years
after that challenge failed, they gained four seats in the
delegation, going from a 12–7 minority to an 11–8 majority. At the
next election, they flipped another Republican seat.
Even the most sophisticated districting maps
cannot reliably account for some of the reasons voters prefer one
candidate over another, or why their preferences may change. Voters
elect individual candidates in individual districts, and their
selections depend on the issues that matter to them, the quality of
the candidates, the tone of the candidates’ campaigns, the
performance of an incumbent, national events or local issues that
drive voter turnout, and other considerations. Many voters split
their tickets. Others never register with a political party, and
vote for candidates from both major parties at different points
during their lifetimes. For all of those reasons, asking judges to
predict how a particular districting map will perform in future
elections risks basing constitutional holdings on unstable ground
outside judicial expertise.
It is hard to see what the District Court’s
third prong—providing the defendant an opportunity to show that the
discriminatory effects were due to a “legitimate redistricting
objective”—adds to the inquiry. 318 F. Supp. 3d, at 861. The
first prong already requires the plaintiff to prove that partisan
advantage predominates. Asking whether a legitimate purpose other
than partisanship was the motivation for a particular districting
map just restates the question.
B
The District Courts also found partisan
gerrymandering claims justiciable under the First Amendment,
coalescing around a basic three-part test: proof of intent to
burden individuals based on their voting history or party
affiliation; an actual burden on political speech or associational
rights; and a causal link between the invidious intent and actual
burden. See
Common Cause, 318 F. Supp. 3d, at 929;
Benisek, 348 F. Supp. 3d, at 522. Both District Courts
concluded that the districting plans at issue violated the
plaintiffs’ First Amendment right to association. The District
Court in North Carolina relied on testimony that, after the 2016
Plan was put in place, the plaintiffs faced “difficulty raising
money, attracting candidates, and mobilizing voters to support the
political causes and issues such Plaintiffs sought to advance.” 318
F. Supp. 3d, at 932. Similarly, the District Court in Maryland
examined testimony that “revealed a lack of enthusiasm,
indifference to voting, a sense of disenfranchisement, a sense of
disconnection, and confusion,” and concluded that Republicans in
the Sixth District “were burdened in fundraising, attracting
volunteers, campaigning, and generating interest in voting.” 348
F. Supp. 3d, at 523–524.
To begin, there are no restrictions on speech,
association, or any other First Amendment activities in the
districting plans at issue. The plaintiffs are free to engage in
those activities no matter what the effect of a plan may be on
their district.
The plaintiffs’ argument is that partisanship in
districting should be regarded as simple discrimination against
supporters of the opposing party on the basis of political
viewpoint. Under that theory, any level of partisanship in
districting would constitute an infringement of their First
Amendment rights. But as the Court has explained, “[i]t would be
idle . . . to contend that any political consideration
taken into account in fashioning a reapportionment plan is
sufficient to invalidate it.”
Gaffney, 412 U. S., at
752. The First Amendment test simply describes the act of
districting for partisan advantage. It provides no standard for
determining when partisan activity goes too far.
As for actual burden, the slight anecdotal
evidence found sufficient by the District Courts in these cases
shows that this too is not a serious standard for separating
constitutional from unconstitutional partisan gerrymandering. The
District Courts relied on testimony about difficulty drumming up
volunteers and enthusiasm. How much of a decline in voter
engagement is enough to constitute a First Amendment burden? How
many door knocks must go unanswered? How many petitions unsigned?
How many calls for volunteers unheeded? The
Common Cause
District Court held that a partisan gerrymander places an
unconstitutional burden on speech if it has more than a “
de
minimis” “chilling effect or adverse impact” on any First
Amendment activity. 318 F. Supp. 3d, at 930. The court went on
to rule that there would be an adverse effect “even if the speech
of [the plaintiffs] was not
in fact chilled”; it was enough
that the districting plan “makes it easier for supporters of
Republican candidates to translate their votes into seats,” thereby
“enhanc[ing] the[ir] relative voice.”
Id., at 933 (internal
quotation marks omitted).
These cases involve blatant examples of
partisanship driving districting decisions. But the First Amendment
analysis below offers no “clear” and “manageable” way of
distinguishing permissible from impermissible partisan motivation.
The
Common Cause court embraced that conclusion, observing
that “a judicially manageable framework for evaluating partisan
gerrymandering claims need not distinguish an ‘acceptable’ level of
partisan gerrymandering from ‘excessive’ partisan gerrymandering”
because “the Constitution does not authorize state redistricting
bodies to engage in such partisan gerrymandering.”
Id., at
851. The decisions below prove the prediction of the
Vieth
plurality that “a First Amendment claim, if it were sustained,
would render unlawful
all consideration of political
affiliation in districting,” 541 U. S., at 294, contrary to
our established precedent.
C
The dissent proposes using a State’s own
districting criteria as a neutral baseline from which to measure
how extreme a partisan gerrymander is. The dissent would have us
line up all the possible maps drawn using those criteria according
to the partisan distribution they would produce. Distance from the
“median” map would indicate whether a particular districting plan
harms supporters of one party to an unconstitutional extent.
Post, at 18–19, 25 (opinion of Kagan, J.).
As an initial matter, it does not make sense to
use criteria that will vary from State to State and year to year as
the baseline for determining whether a gerrymander violates the
Federal Constitution. The degree of partisan advantage that the
Constitution tolerates should not turn on criteria offered by the
gerrymanderers themselves. It is easy to imagine how different
criteria could move the median map toward different partisan
distributions. As a result, the same map could be constitutional or
not depending solely on what the mapmakers said they set out to do.
That possibility illustrates that the dissent’s proposed
constitutional test is indeterminate and arbitrary.
Even if we were to accept the dissent’s proposed
baseline, it would return us to “the original unanswerable question
(How much political motivation and effect is too much?).”
Vieth, 541 U. S., at 296–297 (plurality opinion). Would
twenty percent away from the median map be okay? Forty percent?
Sixty percent? Why or why not? (We appreciate that the dissent
finds all the unanswerable questions annoying, see
post, at
22, but it seems a useful way to make the point.) The dissent’s
answer says it all: “This much is too much.”
Post, at 25–26.
That is not even trying to articulate a standard or rule.
The dissent argues that there are other
instances in law where matters of degree are left to the courts.
See
post, at 27. True enough. But those instances typically
involve constitutional or statutory provisions or common law
confining and guiding the exercise of judicial discretion. For
example, the dissent cites the need to determine “substantial
anticompetitive effect[s]” in antitrust law.
Post, at 27
(citing
Ohio v.
American Express Co., 585 U. S.
___ (2018)). That language, however, grew out of the Sherman Act,
understood from the beginning to have its “origin in the common
law” and to be “familiar in the law of this country prior to and at
the time of the adoption of the [A]ct.”
Standard Oil Co. of
N. J. v.
United States,
221 U.S.
1, 51 (1911). Judges began with a significant body of law about
what constituted a legal violation. In other cases, the pertinent
statutory terms draw meaning from related provisions or statutory
context. Here, on the other hand, the Constitution provides no
basis whatever to guide the exercise of judicial discretion. Common
experience gives content to terms such as “substantial risk” or
“substantial harm,” but the same cannot be said of substantial
deviation from a median map. There is no way to tell whether the
prohibited deviation from that map should kick in at 25 percent or
75 percent or some other point. The only provision in the
Constitution that specifically addresses the matter assigns it to
the political branches. See Art. I, §4, cl. 1.
D
The North Carolina District Court further
concluded that the 2016 Plan violated the Elections Clause and
Article I, §2. We are unconvinced by that novel approach.
Article I, §2, provides that “[t]he House of
Representatives shall be composed of Members chosen every second
Year by the People of the several States.” The Elections Clause
provides that “[t]he Times, Places and Manner of holding Elections
for Senators and Representatives, shall be prescribed in each State
by the Legislature thereof; but the Congress may at any time by Law
make or alter such Regulations, except as to the Places of chusing
Senators.” Art. I, §4, cl. 1.
The District Court concluded that the 2016 Plan
exceeded the North Carolina General Assembly’s Elections Clause
authority because, among other reasons, “the Elections Clause did
not empower State legislatures to disfavor the interests of
supporters of a particular candidate or party in drawing
congressional districts.” 318 F. Supp. 3d, at 937. The court
further held that partisan gerrymandering infringes the right of
“the People” to select their representatives.
Id., at
938–940. Before the District Court’s decision, no court had reached
a similar conclusion. In fact, the plurality in
Vieth
concluded—without objection from any other Justice—that neither §2
nor §4 of Article I “provides a judicially enforceable limit on the
political considerations that the States and Congress may take into
account when districting.” 541 U. S., at 305.
The District Court nevertheless asserted that
partisan gerrymanders violate “the core principle of [our]
republican government” preserved in Art. I, §2, “namely, that
the voters should choose their representatives, not the other way
around.” 318 F. Supp. 3d, at 940 (quoting
Arizona State
Legislature, 576 U. S., at ___ (slip op., at 35); internal
quotation marks omitted; alteration in original). That seems like
an objection more properly grounded in the Guarantee Clause of
Article IV, §4, which “guarantee[s] to every State in [the]
Union a Republican Form of Government.” This Court has several
times concluded, however, that the Guarantee Clause does not
provide the basis for a justiciable claim. See,
e.g.,
Pacific States Telephone & Telegraph Co. v.
Oregon,
223 U.S.
118 (1912).
V
Excessive partisanship in districting leads to
results that reasonably seem unjust. But the fact that such
gerrymandering is “incompatible with democratic principles,”
Arizona State Legislature, 576 U. S., at ___ (slip op.,
at 1), does not mean that the solution lies with the federal
judiciary. We conclude that partisan gerrymandering claims present
political questions beyond the reach of the federal courts. Federal
judges have no license to reallocate political power between the
two major political parties, with no plausible grant of authority
in the Constitution, and no legal standards to limit and direct
their decisions. “[J]udicial action must be governed by
standard, by
rule,” and must be “principled,
rational, and based upon reasoned distinctions” found in the
Constitution or laws.
Vieth, 541 U. S., at 278, 279
(plurality opinion). Judicial review of partisan gerrymandering
does not meet those basic requirements.
Today the dissent essentially embraces the
argument that the Court unanimously rejected in
Gill: “this
Court
can address the problem of partisan gerrymandering
because it
must.” 585 U. S., at ___ (slip op., at 12).
That is not the test of our authority under the Constitution; that
document instead “confines the federal courts to a properly
judicial role.”
Town of Chester v.
Laroe Estates,
Inc., 581 U. S. ___, ___ (2017) (slip op., at 4).
What the appellees and dissent seek is an
unprecedented expansion of judicial power. We have never struck
down a partisan gerrymander as unconstitutional—despite various
requests over the past 45 years. The expansion of judicial
authority would not be into just any area of controversy, but into
one of the most intensely partisan aspects of American political
life. That intervention would be unlimited in scope and duration—it
would recur over and over again around the country with each new
round of districting, for state as well as federal representatives.
Consideration of the impact of today’s ruling on democratic
principles cannot ignore the effect of the unelected and
politically unaccountable branch of the Federal Government assuming
such an extraordinary and unprecedented role. See
post, at
32–33.
Our conclusion does not condone excessive
partisan gerrymandering. Nor does our conclusion condemn complaints
about districting to echo into a void. The States, for example, are
actively addressing the issue on a number of fronts. In 2015, the
Supreme Court of Florida struck down that State’s congressional
districting plan as a violation of the Fair Districts Amendment to
the Florida Constitution.
League of Women Voters of Florida
v.
Detzner, 172 So. 3d 363 (2015). The dissent wonders why
we can’t do the same. See
post, at 31. The answer is that
there is no “Fair Districts Amendment” to the Federal Constitution.
Provisions in state statutes and state constitutions can provide
standards and guidance for state courts to apply. (We do not
understand how the dissent can maintain that a provision saying
that no districting plan “shall be drawn with the intent to favor
or disfavor a political party” provides little guidance on the
question. See
post, at 31, n. 6.) Indeed, numerous
other States are restricting partisan considerations in districting
through legislation. One way they are doing so is by placing power
to draw electoral districts in the hands of independent
commissions. For example, in November 2018, voters in Colorado and
Michigan approved constitutional amendments creating multimember
commissions that will be responsible in whole or in part for
creating and approving district maps for congressional and state
legislative districts. See Colo. Const., Art. V, §§44, 46;
Mich. Const., Art. IV, §6. Missouri is trying a different
tack. Voters there overwhelmingly approved the creation of a new
position—state demographer—to draw state legislative district
lines. Mo. Const., Art. III, §3.
Other States have mandated at least some of the
traditional districting criteria for their mapmakers. Some have
outright prohibited partisan favoritism in redistricting. See Fla.
Const., Art. III, §20(a) (“No apportionment plan or individual
district shall be drawn with the intent to favor or disfavor a
political party or an incumbent.”); Mo. Const., Art. III, §3
(“Districts shall be designed in a manner that achieves both
partisan fairness and, secondarily, competitiveness. ‘Partisan
fairness’ means that parties shall be able to translate their
popular support into legislative representation with approximately
equal efficiency.”); Iowa Code §42.4(5) (2016) (“No district shall
be drawn for the purpose of favoring a political party, incumbent
legislator or member of Congress, or other person or group.”); Del.
Code Ann., Tit. xxix, §804 (2017) (providing that in determining
district boundaries for the state legislature, no district shall
“be created so as to unduly favor any person or political
party”).
As noted, the Framers gave Congress the power to
do something about partisan gerrymandering in the Elections Clause.
The first bill introduced in the 116th Congress would require
States to create 15-member independent commissions to draw
congressional districts and would establish certain redistricting
criteria, including protection for communities of interest, and ban
partisan gerrymandering. H. R. 1, 116th Cong., 1st Sess.,
§§2401, 2411 (2019).
Dozens of other bills have been introduced to
limit reliance on political considerations in redistricting. In
2010, H. R. 6250 would have required States to follow
standards of compactness, contiguity, and respect for political
subdivisions in redistricting. It also would have prohibited the
establishment of congressional districts “with the major purpose of
diluting the voting strength of any person, or group, including any
political party,” except when necessary to comply with the Voting
Rights Act of 1965. H. R. 6250, 111th Cong., 2d Sess., §2
(referred to committee).
Another example is the Fairness and Independence
in Redistricting Act, which was introduced in 2005 and has been
reintroduced in every Congress since. That bill would require every
State to establish an independent commission to adopt redistricting
plans. The bill also set forth criteria for the independent
commissions to use, such as compactness, contiguity, and population
equality. It would prohibit consideration of voting history,
political party affiliation, or incumbent Representative’s
residence. H. R. 2642, 109th Cong., 1st Sess., §4 (referred to
subcommittee).
We express no view on any of these pending
proposals. We simply note that the avenue for reform established by
the Framers, and used by Congress in the past, remains open.
* * *
No one can accuse this Court of having a
crabbed view of the reach of its competence. But we have no
commission to allocate political power and influence in the absence
of a constitutional directive or legal standards to guide us in the
exercise of such authority. “It is emphatically the province and
duty of the judicial department to say what the law is.”
Marbury v.
Madison, 1 Cranch, at 177. In this rare
circumstance, that means our duty is to say “this is not law.”
The judgments of the United States District
Court for the Middle District of North Carolina and the United
States District Court for the District of Maryland are vacated, and
the cases are remanded with instructions to dismiss for lack of
jurisdiction.
It is so ordered.