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SUPREME COURT OF THE UNITED STATES
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No. 14–232
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WESLEY W. HARRIS, et al., APPELLANTS
v.ARIZONA INDEPENDENT REDISTRICTING COMMISSION,
et al.
on appeal from the united states district
court for the district of arizona
[April 20, 2016]
Justice Breyer delivered the opinion of the
Court.
Appellants, a group of Arizona voters, challenge
a re-districting plan for the State’s legislature on the ground
that the plan’s districts are insufficiently equal in population.
See Reynolds v. Sims, 377 U. S. 533, 577 (1964)
. Because the maximum population deviation between the largest and
the smallest district is less than 10%, the appellants cannot
simply rely upon the numbers to show that the plan violates the
Constitution. See Brown v. Thomson, 462 U. S.
835, 842 (1983) . Nor have appellants adequately supported their
contentions with other evidence. We consequently affirm a 3-judge
Federal District Court decision upholding the plan.
I
In 2000, Arizona voters, using the initiative
process, amended the Arizona Constitution to provide for an
independent redistricting commission. See Arizona State
Legislature v. Arizona Independent Redistricting Comm’n,
576 U. S. ___, ___ (2015) (slip op., at 35) (upholding the
amendment as consistent with federal constitutional and statutory
law). Each decade, the Arizona Commission on Appellate Court
Appointments creates three slates of individuals: one slate of 10
Republicans, one slate of 10 Democrats, and one slate of 5
individuals not affiliated with any political party. The majority
and minority leader of the Arizona Legislature each select one
Redistricting Commission member from the first two lists. These
four selected individuals in turn choose one member from the third,
nonpartisan list. See Ariz. Const., Art. IV, pt. 2, §§1(5)–(8).
Thus, the membership of the Commission consists of two Republicans,
two Democrats, and one independent.
After each decennial census, the Commission
redraws Arizona’s 30 legislative districts. The first step in the
process is to create “districts of equal population in a grid-like
pattern across the state.” §1(14). It then adjusts the grid to “the
extent practicable” in order to take into account the need for
population equality; to maintain geographic compactness and
continuity; to show respect for “communities of interest”; to
follow locality boundaries; and to use “visible geographic
features” and “undivided . . . tracts.” §§1(14)(B)–(E).
The Commission will “favo[r]” political “competitive[ness]” as long
as its efforts to do so “create no significant detriment to the
other goals.” Id., §1(14)(F). Finally, it must adjust
boundaries “as necessary” to comply with the Federal Constitution
and with the federal Voting Rights Act. §1(14)(A).
After the 2010 census, the legislative
leadership selected the Commission’s two Republican and two
Democratic members, who in turn selected an independent member,
Colleen Mathis. Mathis was then elected chairwoman. The Commission
hired two counsel, one of whom they thought of as leaning Democrat
and one as leaning Republican. It also hired consultants, including
mapping specialists, a statistician, and a Voting Rights Act
specialist. With the help of its staff, it drew an initial plan,
based upon the gridlike map, with district boundaries that produced
a maximum population deviation (calculated as the difference
between the most populated and least populated district) of 4.07%.
After changing several boundaries, including those of Districts 8,
24, and 26, the Commission adopted a revised plan by a vote of 3 to
2, with the two Republican members voting against it. In late April
2012, the Department of Justice approved the plan as consistent
with the Voting Rights Act.
The next day, appellants filed this lawsuit,
primarily claiming that the plan’s population variations were
inconsistent with the Fourteenth Amendment. A 3-judge Federal
District Court heard the case. See 28 U. S. C. §2284(a)
(providing for the convention of such a court whenever an action is
filed challenging the constitutional-ity of apportionment of
legislative districts). After a 5-day bench trial, the court, by a
vote of 2 to 1, entered judgment for the Commission. The majority
found that “the population deviations were primarily a result of
good-faith efforts to comply with the Voting Rights Act
. . . even though partisanship played some role.” 993
F. Supp. 2d 1042, 1046 (Ariz. 2014). Appellants sought direct
review in this Court. See 28 U. S. C. §1253. We noted
probable jurisdiction on June 30, 2015, and we now affirm.
II
A
The Fourteenth Amendment’s Equal Protection
Clause requires States to “make an honest and good faith effort to
construct [legislative] districts . . . as nearly of
equal population as is practicable.” Reynolds, 377 U. S., at
577. The Constitution, however, does not demand mathematical
perfection. In determining what is “practicable,” we have
recognized that the Constitution permits deviation when it is
justified by “legitimate considerations incident to the
effectuation of a rational state policy.” Id., at 579. In
related contexts, we have made clear that in addition to the
“traditional districting principles such as compactness [and]
contiguity,” Shaw v. Reno, 509 U. S. 630, 647
(1993) , those legitimate considerations can include a state
interest in maintaining the integrity of political subdivisions,
Mahan v. Howell, 410 U. S. 315, 328 (1973) , or
the competitive balance among political parties, Gaffney v.
Cummings, 412 U. S. 735, 752 (1973) . In cases decided
before Shelby County v. Holder, 570 U. S. ___
(2013), Members of the Court expressed the view that compliance
with §5 of the Voting Rights Act is also a legitimate state
consideration that can justify some deviation from perfect equality
of population. See League of United Latin American Citizens
v. Perry, 548 U. S. 399, 518 (2006) (Scalia, J.,
concurring in judgment in part and dissenting in part, joined in
relevant part by Roberts, C. J., Thomas & Alito, JJ.);
id., at 475, n. 12 (Stevens, J., concurring in part and
dissenting in part, joined in relevant part by Breyer, J.);
id., at 485 n. 2 (Souter, J., concurring in part and
dissenting in part, joined by Ginsburg, J.); see also Vieth
v. Jubelirer, 541 U. S. 267, 284 (2004) (plurality
opinion) (listing examples of traditional redistricting criteria,
including “compliance with requirements of the [Voting Rights
Act]”). It was proper for the Commission to proceed on that basis
here.
We have further made clear that “minor
deviations from mathematical equality” do not, by themselves, “make
out a prima facie case of invidious discrimination under the
Fourteenth Amendment so as to require justification by the State.”
Gaffney, supra, at 745. We have defined as “minor
deviations” those in “an apportionment plan with a maximum
population deviation under 10%.” Brown, 462 U. S., at
842. And we have refused to require States to justify deviations of
9.9%, White v. Regester, 412 U. S. 755, 764
(1973) , and 8%, Gaffney, 412 U. S., at 751. See also
Fund for Accurate and Informed Representation, Inc. v.
Weprin, 506 U. S. 1017 (1992) (summarily affirming a
District Court’s finding that there was no prima facie case where
the maximum population deviation was 9.43%).
In sum, in a case like this one, those attacking
a state-approved plan must show that it is more probable than not
that a deviation of less than 10% reflects the predominance of
illegitimate reapportionment factors rather than the “legitimate
considerations” to which we have referred in Reynolds and
later cases. Given the inherent difficulty of measuring and
comparing factors that may legitimately account for small
deviations from strict mathematical equality, we believe that
attacks on deviations under 10% will succeed only rarely, in
unusual cases. And we are not surprised that the appellants have
failed to meet their burden here.
B
Appellants’ basic claim is that deviations in
their apportionment plan from absolute equality of population
reflect the Commission’s political efforts to help the Democratic
Party. We believe that appellants failed to prove this claim
because, as the district court concluded, the deviations
predominantly reflected Commission efforts to achieve compliance
with the federal Voting Rights Act, not to secure political
advantage for one party. Appellants failed to show to the contrary.
And the record bears out this conclusion. Cf.
Anderson v. Bessemer City, 470 U. S. 564, 573
(1985) (explaining that a district court’s factual finding as to
whether discrimination occurred will not be set aside by an
appellate court unless clearly erroneous).
The Voting Rights Act, among other things,
forbids the use of new reapportionment plans that “would lead to a
retrogression in the position of racial minorities with respect to
their effective exercise of the electoral franchise.” Reno
v. Bossier Parish School Bd., 520. U. S. 471, 478
(1997). A plan leads to impermissible retrogression when, compared
to the plan currently in effect (typically called a “benchmark
plan”), the new plan diminishes the number of districts in which
minority groups can “elect their preferred candidates of choice”
(often called “ability-to-elect” districts). See 52
U. S. C. §10304(b). A State can obtain legal assurance
that it has satisfied the non-retrogression requirement if it
submits its proposed plan to the Federal Department of Justice, and
the Department does not object to the plan within 60 days. See 28
C. F. R. §§51.9, 51.52(b) (2015). While Shelby
County struck down the §4(b) coverage formula, that decision
came after the maps in this case were drawn.
The record in this case shows that the gridlike
map that emerged after the first step of the redistricting process
had a maximum population deviation from absolute equality of
districts of 4.07%. After consulting with their Voting Rights Act
expert, their mapping consultant, and their statisticians, all five
Commissioners agreed that they must try to obtain Justice
Department Voting Rights Act “preclearance” and that the former
benchmark plan contained 10 ability-to-elect districts. They
consequently set a goal of 10 such districts for the new plan. They
then went through an iterative process, involving further
consultation, to adjust the plan’s initial boundaries in order to
enhance minority voting strength. In October 2011 (by a vote of 4
to 1), they tentatively approved a draft plan with adjusted
boundaries. They believed it met their goal of 10 ability-to-elect
districts. And they published the plan for public comment.
In the meantime, however, the Commission
received a report from one of its statisticians suggesting that the
Department of Justice might not agree that the new proposed plan
contained 10 ability-to-elect districts. It was difficult to know
for certain because the Justice Department did not tell States how
many ability-to-elect districts it believed were present in a
benchmark plan, and neither did it typically explain precisely and
specifically how it would calculate the number that exist in a
newly submitted plan. See 76 Fed. Reg. 7470–7471 (2011). At the
same time, the ability-to-elect analysis was complex, involving
more than simply adding up census figures. The Department of
Justice instead conducted a “functional analysis of the electoral
behavior within the particular . . . election district,”
id., at 7471, and so might, for example, count as
ability-to-elect districts “crossover” districts in which white
voters combine their votes with minorities, see Bartlett v.
Strickland, 556 U. S. 1 –14 (2009). Its calculations
might take into account group voting patterns, electoral
participation, election history, and voter turnout. See 76 Fed.
Reg., 7471. The upshot was not randomdecision-making but the
process did create an inevitable degree of uncertainty. And that
uncertainty could lead a redistricting commission, as it led
Arizona’s, to make serious efforts to make certain that the
districts it believed were ability-to-elect districts did in fact
meet the criteria that the Department might reasonably apply.
Cf. Alabama Legislative Black Caucus v. Alabama, 575
U. S. ___, ___ (2015) (slip op., at 22) (“The law cannot
insist that a state legislature, when redistricting, determine
precisely what percent minority population §5 demands
[because] the standards of §5 are complex . . . .
[To do so would] lay a trap for an unwary legislature, condemning
its redistricting plan as either . . . unconstitutional
racial gerrymandering [or] . . . retrogressive under
§5”).
As a result of the statistician’s report, the
Commission became concerned about certain of its proposed
boundaries. One of the Commission’s counsel advised that it would
be “prudent to stay the course in terms of the ten districts that
are in the draft map and look to . . . strengthen them if
there is a way to strengthen them.” 993 F. Supp. 2d, at 1058
(internal quotation marks omitted). Subsequently, the Commission
adopted several changes to the boundaries of Districts 24 and 26.
It reduced the populations of those districts, thereby increasing
the percentage of Hispanic voters in each. The Commission approved
these changes unanimously.
Changes in the boundaries of District 8,
however, proved more controversial. District 8 leaned Republican. A
Democrat-appointed Commissioner asked the mapping specialist to
look into modifications that might make District 8 politically more
competitive. The specialist returned with a draft that shifted the
boundary line between District 8 and District 11 so as to keep
several communities with high minority populations together in
District 8. The two Republican-appointed Commissioners objected
that doing so would favor Democrats by “hyperpacking” Republicans
into other districts; they added that the Commission should either
favor political competitiveness throughout the State or not at all.
Id., at 1059 (internal quotation marks omitted).
The Democrat-appointed proponent of the change
replied that District 8 had historically provided minority groups a
good opportunity to elect their candidate of choice—an opportunity
that the changes would preserve. The Voting Rights Act specialist
then said that by slightly increasing District 8’s minority
population, the Commission might be able to claim an 11th
ability-to-elect district; and that fact would “unquestionably
enhance the submission and enhance chances for preclearance.”
Ibid. (internal quotation marks omitted). The Commission’s
counsel then added that having another possible ability-to-elect
district could be helpful because District 26 was not as strong an
ability-to-elect district as the others. See ibid.
Only then, after the counsel and consultants
argued for District 8 changes for the sake of Voting Rights Act
preclearance, did Chairwoman Mathis support those changes. On that
basis, the Commission ultimately approved the changes to District 8
by a vote of 3 to 2 (with the two Republican-appointed
commissioners dissenting). The total population deviation among
districts in this final map was 8.8%. While the Commission
ultimately concluded that District 8 was not a true
ability-to-elect district, the State’s submission to the Department
of Justice cited the changes to District 8 in support of the
argument for preclearance. On April 26, 2012, the Department of
Justice precleared the submitted plan.
On the basis of the facts that we have
summarized, the District Court majority found that “the population
deviations were primarily a result of good-faith efforts to comply
with the Voting Rights Act . . . even though partisanship
played some role.” 993 F. Supp. 2d, at 1046. This conclusion
was well supported in the record. And as a result, appellants have
not shown that it is more probable than not that illegitimate
considerations were the predominant motivation behind the plan’s
deviations from mathematically equal district
populations—deviations that were under 10%. Consequently, they have
failed to show that the Commission’s plan violates the Equal
Protection Clause as interpreted in Reynolds and subsequent
cases.
C
The appellants make three additional
arguments. First, they support their claim that the plan reflects
unreason-able use of partisan considerations by pointing to the
fact that almost all the Democratic-leaning districts are somewhat
underpopulated and almost all the Republican-leaning districts are
somewhat overpopulated. That is likely true. See 993 F. Supp.
2d, at 1049 (providing a chart with percentage deviation figures by
district). But that fact may well reflect the tendency of minority
populations in Arizona in 2010 to vote disproportionately for
Democrats. If so, the variations are explained by the Commission’s
efforts to maintain at least 10 ability-to-elect districts. The
Commission may have relied on data from its statisticians and
Voting Rights Act expert to create districts tailored to achieve
preclearance in which minority voters were a larger percentage of
the district population. That might have necessitated moving other
voters out of those districts, thereby leaving them slightly
underpopulated. The appellants point to nothing in the record to
suggest the contrary.
Second, the appellants point to Cox v.
Larios, 542 U. S. 947 (2004) , in which we summarily
affirmed a district court’s judgment that Georgia’s reapportionment
of representatives to state legislative districts violated the
Equal Protection Clause, even though the total population deviation
was less than 10%. In Cox, however, unlike the present case, the
district court found that those attacking the plan had shown that
it was more probable than not that the use of illegitimate factors
significantly explained deviations from numerical equality among
districts. The district court produced many examples showing that
population deviation as well as the shape of many districts “did
not result from any attempt to create districts that were compact
or contiguous, or to keep counties whole, or to preserve the cores
of prior districts.” Id., at 949. No legitimate purposes
could explain them. It is appellants’ inability to show that the
present plan’s deviations and boundary shapes result from the
predominance of simi-larly illegitimate factors that makes Cox
inapposite here. Even assuming, without deciding, that partisanship
is an illegitimate redistricting factor, appellants have not
carried their burden.
Third, appellants point to Shelby County
v. Holder, 570 U. S. ___ (2013), in which this Court
held unconstitutional sections of the Voting Rights Act that are
relevant to this case. Appellants contend that, as a result of that
holding, Arizona’s attempt to comply with the Act could not have
been a legitimate state interest. The Court decided Shelby
County, however, in 2013. Arizona created the plan at issue
here in 2010. At the time, Arizona was subject tothe Voting Rights
Act, and we have never suggested the contrary.
* * *
For these reasons the judgment of the District
Court is affirmed.
It is so ordered.
