Vieth v. Jubelirer Court Documents Supreme Court of the United States 541 U.S. 267 (2004)

Attached here:  Plurality opinion, concurring opinions, and dissenting opinions (relevant sections highlighted)

This document is also available on the Brennan Center’s website here: http://www.brennancenter.org/analysis/coming-battle-over-partisan-gerrymandering

541 U.S. 267 VIETH v. JUBELIRER 1769 Cite as 124 S.Ct. 1769 (2004) standing alone. They call attention to un- mined that plan did not satisfy one person- tidy details, and rightly understood legisla- one vote requirement. Following enact- tion can be untidy: statutes can be un- ment of new plan and renewal of constitu- systematic, redundant, and fuzzy about tional challenge, a three-judge panel of the drawing lines. As a purely textual matter, District Court, 241 F.Supp.2d 478, ap- both the majority’s reading and mine have proved the plan, and voters appealed. strengths and weaknesses. The point is Holding: The Supreme Court, Justice that the tie breakers cut in favor of sus- Scalia, held that political gerrymandering taining the South Coast Fleet Rules. My claims were nonjusticiable. reading adheres more closely to the legis- Affirmed. lative history of § 209(a). It takes proper account of the fact that the Fleet Rules Justice Kennedy filed opinion concurring with this commercial availability condition in the judgment. do not require manufacturers, even indi- Justice Stevens filed dissenting opinion. rectly, to produce a new kind of engine. Justice Souter filed dissenting opinion in And, most importantly, my reading ad- which Justice Ginsburg joined. heres to the well-established presumption against preemption. Justice Breyer filed dissenting opinion.

Federal Courts O13.20 , Claim of political gerrymandering in congressional redistricting plan was non- justiciable, because there were no judicial- ly discernible and manageable standards 541 U.S. 267, 158 L.Ed.2d 546 for adjudicating such a claim. (Per Justice Richard VIETH, Norma Jean Vieth, Scalia with the Chief Justice and two Jus- and Susan Furey, Appellants, tices joining, and one Justice joining in result). v. Robert C. JUBELIRER, President of Syllabus * the Pennsylvania Senate, et al. After Pennsylvania’s General Assem- No. 02–1580. bly adopted a congressional redistricting Argued Dec. 10, 2003. plan, plaintiffs-appellants sued to enjoin Decided April 28, 2004. the plan’s implementation, alleging, inter alia, that it constituted a political gerry- Background: Voters brought action mander in violation of Article I and the against Commonwealth of Pennsylvania, Fourteenth Amendment’s Equal Protec- challenging constitutionality of congres- tion Clause. The three-judge District sional redistricting plan. Following dis- Court dismissed the gerrymandering missal of other claims, 188 F.Supp.2d 532, claim, and the plaintiffs appealed. three-judge panel of the United States District Court for the Middle District of Held: The judgment is affirmed. Pennsylvania, 195 F.Supp.2d 672, deter- 241 F.Supp.2d 478, affirmed.

* The syllabus constitutes no part of the opinion the reader. See United States v. Detroit Tim- of the Court but has been prepared by the ber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. Reporter of Decisions for the convenience of 282, 50 L.Ed. 499. 1770 124 SUPREME COURT REPORTER 541 U.S. 267

Justice SCALIA, joined by THE simply applied the Bandemer S 268plurality’s CHIEF JUSTICE, Justice O’CONNOR, standard, almost invariably producing the and Justice THOMAS, concluded that po- same result as would have obtained had litical gerrymandering claims are nonjusti- the question been nonjusticiable: Judicial ciable because no judicially discernible and intervention has been refused. Eighteen manageable standards for adjudicating years of judicial effort with virtually noth- such claims exist. They would therefore ing to show for it justifies revisiting wheth- overrule Davis v. Bandemer, 478 U.S. 109, er the standard promised by Bandemer 106 S.Ct. 2797, 92 L.Ed.2d 85, in which exists. Pp. 1776–1778. this Court held that political gerrymander- (2) The Bandemer plurality’s stan- ing claims are justiciable, but could not dard—that a political gerrymandering agree upon a standard for assessing politi- claim can succeed only where the plaintiffs cal gerrymandering claims. Pp. 1774– show ‘‘both intentional discrimination 1792. against an identifiable political group and (a) Political gerrymanders existed in an actual discriminatory effect on that colonial times and continued through the group,’’ 478 U.S., at 127, 106 S.Ct. 2797— framing. The Framers provided a reme- has proved unmanageable in application. dy for the problem: The Constitution Because that standard was misguided gives state legislatures the initial power to when proposed, has not been improved in draw federal election districts, but author- subsequent application, and is not even izes Congress to ‘‘make or alter’’ those defended by the appellants in this Court, it districts. U.S. Const., Art. I, § 4. In Ban- should not be affirmed as a constitutional demer, the Court held that the Equal Pro- requirement. Pp. 1778–1780. tection Clause also grants judges the pow- (3) Appellants’ proposed two-pronged er—and duty—to control that practice. standard based on Art. I, § 2, and the Pp. 1774–1776. Equal Protection Clause is neither discer- (b) Neither Art. I, § 2 or § 4, nor the nible nor manageable. Appellants are Equal Protection Clause, provides a judi- mistaken when they contend that their cially enforceable limit on the political con- intent prong (‘‘predominant intent’’) is no siderations that the States and Congress different from that which this Court has may take into account when districting. applied in racial gerrymandering cases. Pp. 1776–1784. In those cases, the predominant intent test (1) Among the tests for determining is applied to the challenged district in the existence of a ‘‘nonjusticiable’’ or ‘‘po- which the plaintiffs voted, see, e.g., Miller litical’’ question is a lack of judicially dis- v. Johnson, 515 U.S. 900, 115 S.Ct. 2475, coverable and manageable standards for 132 L.Ed.2d 762, whereas here appellants resolving the question. Baker v. Carr, 369 assert that their test is satisfied only when U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663. partisan advantage was the predominant Because the Bandemer Court was ‘‘not motivation behind the entire statewide persuaded’’ that there are no such stan- plan. Vague as a predominant motivation dards for deciding political gerrymander- test might be when used to evaluate single ing cases, 478 U.S., at 123, 106 S.Ct. 2797, districts, it all but evaporates when applied such cases were justiciable. However, the statewide. For this and other reasons, the six-Justice majority in Bandemer could not racial gerrymandering cases provide no discern what the standards might be. For comfort. The effects prong of appellants’ the past 18 years, the lower courts have proposal requires (1) that the plaintiffs 541 U.S. 269 VIETH v. JUBELIRER 1771 Cite as 124 S.Ct. 1769 (2004) show that the rival party’s voters are sys- standards for measuring whether a politi- tematically ‘‘packed’’ or ‘‘cracked’’; and (2) cal gerrymander burdens the representa- that the court be persuaded from the total- tional rights of a party’s voters. Pp. 1784– ity of the circumstances that the map can 1792. thwart the plaintiffs’ ability to translate a (d) Stare decisis does not require that majority of votes into a majority of seats. Bandemer be allowed to stand. Stare de- This standard is not discernible because cisis claims are at their weakest with re- the Constitution provides no right to pro- spect to a decision interpreting the Consti- portional representation. Even were the tution, particularly where there has been standard discernible, it is not judicially no reliance on that decision. P. 1792. manageable. There is no effective way to ascertain a party’s majority status, and, in Justice KENNEDY, while agreeing any event, majority status in statewide that appellants’ complaint must be dis- races does not establish majority status for missed, concluded that all possibility of particular district contests. Moreover, judicial relief should not be foreclosed in even if a majority party could be identi- cases such as this because a limited and fied, it would be impossible to ensure that precise rationale may yet be found to cor- it won a majority of seats unless the rect an established constitutional violation. States’ traditional election structures were Courts confront two obstacles when pre- radically revised. Pp. 1780–1784. sented with a claim of injury from partisan (4) For many of the same reasons, gerrymandering. First is the lack of com- Justice Powell’s Bandemer standard—a to- prehensive and neutral principles for tality-of-the-circumstances analysis that drawing electoral boundaries. No sub- evaluates districts with an eye to ascer- stantive definition of fairness in districting taining whether the particular gerryman- commands general assent. Second is the der is not ‘‘fair’’—must also be rejected. absence of rules to limit and confine judi- ‘‘Fairness’’ is not a judicially manageable cial intervention. That courts can grant standard. Some criterion more solid and relief in districting cases involving race more demonstrably S 269met than that is does not answer the need for fairness prin- necessary to enable state legislatures to ciples, since those cases involve sorting discern the limits of their districting dis- permissible districting classifications from cretion, to meaningfully constrain the impermissible ones. Politics is a different courts’ discretion, and to win public accep- matter. Gaffney v. Cummings, 412 U.S. tance for the courts’ intrusion into a pro- 735, 93 S.Ct. 2321, 37 L.Ed.2d 298. A cess that is the very foundation of demo- determination that a gerrymander violates cratic decisionmaking. Pp. 1784. the law must rest on something more than (c) Writing separately in dissent, Jus- the conclusion that political classifications tices STEVENS, SOUTER, and BREYER were applied. It must rest instead on a each propose a different standard for adju- conclusion that the classifications, though dicating political gerrymandering claims. generally permissible, were applied in an These proposed standards each have their invidious manner or in a way unrelated to own deficiencies, but additionally fail for any legitimate legislative objective. The reasons identified with respect to the stan- object of districting is to establish ‘‘fair dards proposed by appellants and those and effective representation for all citi- proposed in Bandemer. Justice KENNE- zens.’’ Reynolds v. Sims, 377 U.S. 533, 84 DY concurs in the judgment, recognizing S.Ct. 1362, 12 L.Ed.2d 506. It might seem that there are no existing manageable that courts could determine, by the exer- 1772 124 SUPREME COURT REPORTER 541 U.S. 269 cise of their judgment, whether political and more prudential basis for judicial in- classifications are related to this object or tervention in political gerrymandering instead burden representational rights. cases. First Amendment analysis does not The lack, however, of any agreed upon dwell on whether a generally permissible model of fair and effective representation classification has been used for an imper- makes the analysis difficult. With no missible purpose, but concentrates on agreed upon substantive principles of fair whether the legislation burdens the repre- districting, there is no basis on which to sentational rights of the complaining par- define clear, manageSable,270 and politically ty’s voters for reasons of ideology, beliefs, neutral standards for measuring the bur- or political association. That analysis al- den a given partisan classification imposes lows a pragmatic or functional assessment on representational rights. Suitable stan- that accords some latitude to the States. dards for measuring this burden are criti- See, e.g., Eu v. San Francisco County cal to our intervention. In this case, the Democratic Central Comm., 489 U.S. 214, plurality convincingly demonstrates that 109 S.Ct. 1013, 103 L.Ed.2d 271. Pp. the standards proposed in Davis v. Ban- 1792–1798. demer, 478 U.S. 109, 106 S.Ct. 2797, 92 SCALIA, J., announced the judgment L.Ed.2d 85, by the parties here, and by the of the Court and delivered an opinion, in dissents are either unmanageable or incon- which REHNQUIST, C.J., and sistent with precedent, or both. There O’CONNOR and THOMAS, JJ., joined. are, then, weighty arguments for holding KENNEDY, J., filed an opinion cases like these to be nonjusticiable. concurring in the judgment, post, p. 1792. However, they are not so compelling that STEVENS, J., filed a dissenting opinion, they require the Court now to bar all post, p. 1799. SOUTER, J., filed a future partisan gerrymandering claims. dissenting opinion, in which GINSBURG, Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 J., joined, post, p. 1815. BREYER, J., L.Ed.2d 663, makes clear that the more filed a dissenting opinion, post, p. 1822. abstract standards that guide analysis of all Fourteenth Amendment claims suffice Robert B. Hoffman, Reed, Smith LLP, to ensure justiciability of claims like these. Harrisburg, PA, Paul M. Smith, Counsel of That a workable standard for measuring a Record, Thomas J. Perrelli, Bruce V. Spi- gerrymander’s burden on representational va, Sam Hirsch, Daniel Mach, Jenner & rights has not yet emerged does not mean Block, LLC, Washington, DC, for appel- that none will emerge in the future. The lants. Court should adjudicate only what is in the case before it. In this case, absent a John P. Krill, Jr., Counsel of Record, standard by which to measure the burden Linda J. Shorey, Julia M. Glencer, Kirk- appellants claim has been imposed on their patrick & Lockhart LLP, Harrisburg, representational rights, appellants’ evi- Pennsylvania, for Appellees Jubelirer & dence at best demonstrates only that the Perzel. legislature adopted political classifications. D. Michael Fisher, Attorney General, That describes no constitutional flaw under Commonwealth of Pennsylvania, John G. the governing Fourteenth Amendment Knorr, III, Chief Deputy Attorney Gener- standard. Gaffney, supra, at 752, 93 S.Ct. al, J. Bart DeLone, Counsel of Record, 2321. While the equal protection standard Senior Deputy Attorney General, Harris- continues to govern such cases, the First burg, PA, for Appellees Cortes and Accur- Amendment may prove to offer a sounder ti, Office of Attorney General. 541 U.S. 273 VIETH v. JUBELIRER 1773 Cite as 124 S.Ct. 1769 (2004)

Paul M. Smith, Counsel of Record, gation. Pennsylvania’s General Assembly Thomas J. Perrelli, Bruce V. Spiva, Sam took up the task of drawing a new district- Hirsch, Daniel Mach, Jenner & Block, ing map. At the time, the Republican LLC, Washington, DC, Robert B. Hoff- Party controlled a majority of both state man, Reed, Smith LLP, Harrisburg, PA, Houses and held the Governor’s office. for Appellants. Prominent national figures in the Republi- can Party pressured the General Assembly For U.S. Supreme Court briefs, see: to adopt a partisan redistricting plan as a 2003 WL 22811823 (Reply.Brief) punitive measure against Democrats for 2003 WL 22070244 (Appellant.Brief) having enacted pro-Democrat redistricting 2003 WL 22439888 (Appellee.Brief) plans elsewhere. The Republican mem- 2003 WL 22439889 (Appellee.Brief) bers of Pennsylvania’s House and Senate worked together on such a plan. On Janu- Justice SCALIA announced the ary 3, 2002, the General Assembly passed judgment of the Court and delivered an its plan, which was signed into law by opinion, in which THE CHIEF JUSTICE, Governor Schweiker as Act 1. Justice O’CONNOR, and Justice Plaintiffs, registered Democrats who THOMAS join. vote in Pennsylvania, brought suit in the S 271Plaintiffs-appellants Richard Vieth, United States District Court for the Mid- Norma Jean Vieth, and Susan Furey chal- dle District of Pennsylvania, seeking to lenge a map drawn by the Pennsylvania enjoin implementation of Act 1 under Rev. General Assembly establishing districts for Stat. § 1979, 42 U.S.C. § 1983. Defen- the election of congressional Representa- dants-appellees were the Commonwealth tives, on the ground that the districting of Pennsylvania and various executive and constitutes an unconstitutional political legislative officers responsible for enacting 1 gerrymander. In Davis v. Bandemer, 478 or implementing Act 1. The complaint al- U.S. 109, 106 S.Ct. 2797, 92 L.Ed.2d 85 leged, among other things, that the legisla- (1986), this Court held that political gerry- tion created malapportioned districts, in mandering claims are justiciable, but violation of the one-person, one-vote re- S 272could not agree upon a standard to ad- quirement of Article I, § 2, of the United judicate them. The present appeal pres- States Constitution, and that it constituted ents the questions whether our decision in a political gerrymander, in violation of Ar- Bandemer was in error, and, if not, what ticle I and the Equal Protection Clause of the standard should be. the Fourteenth Amendment. With regard to the latter contention, the complaint al- I leged that the districts created by Act 1 The facts, as alleged by the plaintiffs, were ‘‘meandering and irregular,’’ and ‘‘ig- are as follows. The population figures de- nor[ed] all traditional redistricting criteria, rived from the 2000 census showed that including the preservation of S 273local gov- Pennsylvania was entitled to only 19 Rep- ernment boundaries, solely for the sake of resentatives in Congress, a decrease in 2 partisan advantage.’’ Juris. Statement from the Commonwealth’s previous dele- 136a, ¶ 22, 135a, ¶ 20.

1. The term ‘‘political gerrymander’’ has been party an unfair advantage by diluting the op- defined as ‘‘[t]he practice of dividing a geo- position’s voting strength.’’ Black’s Law Dic- graphical area into electoral districts, often of tionary 696 (7th ed.1999). highly irregular shape, to give one political 1774 124 SUPREME COURT REPORTER 541 U.S. 273

A three-judge panel was convened pur- S 274II suant to 28 U.S.C. § 2284. The defen- Political gerrymanders are not new to dants moved to dismiss. The District the American scene. One scholar traces Court granted the motion with respect to them back to the Colony of Pennsylvania the political gerrymandering claim, and (on at the beginning of the 18th century, Eleventh Amendment grounds) all claims against the Commonwealth; but it de- where several counties conspired to mini- clined to dismiss the apportionment claim mize the political power of the city of as to other defendants. See Vieth v. Philadelphia by refusing to allow it to Pennsylvania, 188 F.Supp.2d 532 (M.D.Pa. merge or expand into surrounding jurisdic- 2002) (Vieth I). On trial of the apportion- tions, and denying it additional representa- ment claim, the District Court ruled in tives. See E. Griffith, The Rise and De- favor of plaintiffs. See Vieth v. Pennsyl- velopment of the Gerrymander 26–28 vania, 195 F.Supp.2d 672 (M.D.Pa.2002) (1974) (hereinafter Griffith). In 1732, two (Vieth II). It retained jurisdiction over members of His Majesty’s Council and the the case pending the court’s review and attorney general and deputy inspector and approval of a remedial redistricting plan. comptroller general of affairs of the Prov- On April 18, 2002, Governor Schweiker ince of North Carolina reported that the signed into law Act No. 2002–34, Pa. Stat. Governor had proceeded to ‘‘divide old Ann., Tit. 25, § 3595.301 (Purdon Supp. Precincts established by Law, & to enact 2003) (Act 34), a remedial plan that the new Ones in Places, whereby his Arts he Pennsylvania General Assembly had enact- has endeavoured to prepossess People in a ed to cure the apportionment problem of future election according to his desire, his Act 1. Designs herein being TTT either to endeav- Plaintiffs moved to impose remedial dis- our by his means to get a Majority of his tricts, arguing that the District Court creatures in the Lower House’’ or to dis- should not consider Act 34 to be a proper rupt the assembly’s proceedings. 3 Colo- remedial scheme, both because it was ma- nial Records of North Carolina 380–381 lapportioned, and because it constituted (W. Saunders ed. 1886); see also Griffith an unconstitutional political gerrymander 29. The political gerrymander remained like its predecessor. The District Court alive and well (though not yet known by denied this motion, concluding that the new districts were not malapportioned, that name) at the time of the framing. and rejecting the political gerrymandering There were allegations that Patrick Henry claim for the reasons previously assigned attempted (unsuccessfully) to gerrymander in Vieth I. Vieth v. Pennsylvania, 241 James Madison out of the First Congress. F.Supp.2d 478, 484–485 (M.D.Pa.2003) See 2 W. Rives, Life and Times of James (Vieth III). The plaintiffs appealed the Madison 655, n. 1 (reprint 1970); Letter dismissal of their Act 34 political gerry- from Thomas Jefferson to William Short, mandering claim.2 We noted probable ju- Feb. 9, 1789, reprinted in 5 Works of risdiction. 539 U.S. 957, 123 S.Ct. 2652, Thomas Jefferson 451 (P. Ford ed.1904). 156 L.Ed.2d 654 (2003). And in 1812, of course, there occurred the

2. The plaintiffs apparently never amended tion is not implicated and neither party has their complaint to allege that Act 34 was a raised the point, we assume that the District political gerrymander, yet the District Court’s Court deemed the plaintiffs’ original com- decision in Vieth III resolved that claim on plaint to have been constructively amended. the merits. Because subject-matter jurisdic- 541 U.S. 276 VIETH v. JUBELIRER 1775 Cite as 124 S.Ct. 1769 (2004)

notoriously outrageous political districting the former case would secure it to them- in Massachusetts that gave the gerryman- selves in the latter. What danger could der its name—an amalgam of the names of there be in giving a controuling power to Massachusetts Governor Elbridge Gerry the Natl. Legislature?’’ 2 Records of and the creature (‘‘salamander’’) which the the Federal Convention of 1787, pp. outline of an election district he was credit- 240–241 (M. Farrand ed.1911). ed with forming was thought to resemble. Although the motion of Pinckney and Rut- See Webster’s New International Dictio- ledge failed, opposition to the ‘‘make or nary 1052 (2d ed.1945). ‘‘By 1840 the ger- alter’’ provision of Article I, § 4—and the rymander was a recognized force in party defense that it was needed to prevent po- politics and was generally attempted in all litical gerrymanSdering276—continued to be legislation S 275enacted for the formation of voiced in the state ratifying debates. A election districts. It was generally con- delegate to the Massachusetts convention ceded that each party would attempt to warned that state legislatures gain power which was not proportionate to ‘‘might make an unequal and partial di- its numerical strength.’’ Griffith 123. vision of the states into districts for the It is significant that the Framers provid- election of representatives, or they ed a remedy for such practices in the might even disqualify one third of the Constitution. Article I, § 4, while leaving electors. Without these powers in Con- in state legislatures the initial power to gress, the people can have no remedy; draw districts for federal elections, permit- but the 4th section provides a remedy, a ted Congress to ‘‘make or alter’’ those controlling power in a legislature, com- districts if it wished.3 Many objected to posed of senators and representatives of the congressional oversight established by twelve states, without the influence of this provision. In the course of the de- our commotions and factions, who will bates in the Constitutional Convention, hear impartially, and preserve and re- Charles Pinckney and John Rutledge store to the people their equal and sa- moved to strike the relevant language. cred rights of election.’’ 2 Debates on James Madison responded in defense of the Federal Constitution 27 (J. Elliot 2d the provision that Congress must be given ed. 1876). the power to check partisan manipulation The power bestowed on Congress to of the election process by the States: regulate elections, and in particular to re- ‘‘Whenever the State Legislatures had a strain the practice of political gerryman- favorite measure to carry, they would dering, has not lain dormant. In the Ap- take care so to mould their regulations portionment Act of 1842, 5 Stat. 491, as to favor the candidates they wished to Congress provided that Representatives succeed. Besides, the inequality of the must be elected from single-member dis- Representation in the Legislatures of tricts ‘‘composed of contiguous territory.’’ particular States, would produce a like See Griffith 12 (noting that the law was inequality in their representation in the ‘‘an attempt to forbid the practice of the Natl. Legislature, as it was presumable gerrymander’’). Congress again imposed that the Counties having the power in these requirements in the Apportionment

3. Article I, § 4, provides as follows: lature thereof; but the Congress may at any ‘‘The Times, Places and Manner of holding time by Law make or alter such Regulations, Elections for Senators and Representatives, except as to the Places of chusing Senators.’’ shall be prescribed in each State by the Legis- 1776 124 SUPREME COURT REPORTER 541 U.S. 276

Act of 1862, 12 Stat. 572, and in 1872 ness entertaining the claim of unlawful- further required that districts ‘‘contai[n] ness—because the question is entrusted to as nearly as practicable an equal number one of the political branches or involves no of inhabitants,’’ 17 Stat. 28, § 2. In the judicially enforceable rights. See, e.g., Apportionment Act of 1901, Congress im- Nixon v. United States, 506 U.S. 224, 113 posed a compactness requirement. 31 S.Ct. 732, 122 L.Ed.2d 1 (1993) (challenge Stat. 733. The requirements of contigu- to procedures used in Senate impeachment ity, compactness, and equality of popula- proceedings); Pacific States Telephone & tion were repeated in the 1911 apportion- Telegraph Co. v. Oregon, 223 U.S. 118, 32 ment legislation, 37 Stat. 13, but were not S.Ct. 224, 56 L.Ed. 377 (1912) (claims aris- thereafter continued. Today, only the ing under the Guaranty Clause of Article single-member-district-requirement re- IV, § 4). Such questions are said to be mains. See 2 U.S.C. § 2c. Recent histo- ‘‘nonjusticiable,’’ or ‘‘political questions.’’ ry, however, attests to Congress’s aware- In Baker v. Carr, 369 U.S. 186, 82 S.Ct. ness of the sort of districting practices 691, 7 L.Ed.2d 663 (1962), we set forth six appellants protest, and of its power under independent tests for the existence of a Article I, § 4, to control them. Since political question: 1980, no fewer than five bills have been ‘‘[1] a textually demonstrable constitu- introduced to regulate gerrySmandering277 in congressional districting. See H.R. tional commitment of the issue to a coor- 5037, 101st Cong., 2d Sess. (1990); H.R. dinate political department; or [2] a lack 1711, 101st Cong., 1st Sess. (1989); H.R. of judicially discoverable and managea- 3468, 98th Cong., 1st Sess. (1983); H.R. ble standSards278 for resolving it; or [3] 5529, 97th Cong., 2d Sess. (1982); H.R. the impossibility of deciding without an 2349, 97th Cong., 1st Sess. (1981).4 initial policy determination of a kind clearly for nonjudicial discretion; or [4] Eighteen years ago, we held that the the impossibility of a court’s undertak- Equal Protection Clause grants judges the ing independent resolution without ex- power—and duty—to control political ger- pressing lack of the respect due coordi- rymandering, see Davis v. Bandemer, 478 nate branches of government; or [5] an U.S. 109, 106 S.Ct. 2797, 92 L.Ed.2d 85 unusual need for unquestioning adher- (1986). It is to consideration of this prece- ence to a political decision already made; dent that we now turn. or [6] the potentiality of embarrassment III from multifarious pronouncements by As Chief Justice Marshall proclaimed various departments on one question.’’ two centuries ago, ‘‘[i]t is emphatically the Id., at 217, 82 S.Ct. 691. province and duty of the judicial depart- These tests are probably listed in descend- ment to say what the law is.’’ Marbury v. ing order of both importance and certain- Madison, 1 Cranch 137, 177, 2 L.Ed. 60 ty. The second is at issue here, and there (1803). Sometimes, however, the law is is no doubt of its validity. ‘‘The judicial that the judicial department has no busi- Power’’ created by Article III, § 1, of the

4. The States, of course, have taken their own § 2; Haw.Rev.Stat. § 25–2 (1993); Idaho steps to prevent abusive districting practices. Code § 72–1506 (1948–1999); Me.Rev.Stat. A number have adopted standards for redis- Ann., Tit. 21–A, §§ 1206, 1206–A (West Supp. tricting, and measures designed to insulate 2003); Mont.Code Ann. § 5–1–115 (2003); the process from politics. See, e.g., Iowa Wash. Rev.Code § 44.05.090 (1994). Code § 42.4(5) (2003); N.J. Const., Art. II, 541 U.S. 279 VIETH v. JUBELIRER 1777 Cite as 124 S.Ct. 1769 (2004)

Constitution is not whatever judges choose ability believed that the standard was one to do, see Valley Forge Christian College thing, see id., at 127, 106 S.Ct. 2797 (plu- v. Americans United for Separation of rality opinion of White, J., joined by Bren- Church and State, Inc., 454 U.S. 464, 487, nan, Marshall, and Blackmun, JJ.); two 102 S.Ct. 752, 70 L.Ed.2d 700 (1982); cf. believed it was something else, see id., at Grupo Mexicano de Desarrollo, S.A. v. 161, 106 S.Ct. 2797 (Powell, J., joined by Alliance Bond Fund, Inc., 527 U.S. 308, STEVENS, J., concurring in part and dis- 332–333, 119 S.Ct. 1961, 144 L.Ed.2d 319 senting in part). The lower courts have (1999), or even whatever Congress chooses lived with that assurance of a standard (or to assign them, see Lujan v. Defenders of more precisely, lack of assurance that Wildlife, 504 U.S. 555, 576–577, 112 S.Ct. there is no standard), coupled with that 2130, 119 L.Ed.2d 351 (1992); Chicago & inability to specify a standard, for the past Southern Air Lines, Inc. v. Waterman S.S. 18 years. In that time, they have consid- Corp., 333 U.S. 103, 110–114, 68 S.Ct. 431, ered numerous political gerrymandering 92 L.Ed. 568 (1948). It is the power to act claims; this Court has never revisited the in the manner traditional for English and unanswered question of what standard American courts. One of the most obvious governs. limitations imposed by that requirement is Nor can it be said that the lower courts that judicial action must be governed by have, over 18 years, succeeded in shaping standard, by rule. Laws promulgated by the standard that this Court was initially the Legislative Branch can be inconsistent, unable to enunciate. They have simply illogical, and ad hoc; law pronounced by applied the standard set forth in Bandem- the courts must be principled, rational, and er’s four-Justice plurality opinion. This based upon reasoned distinctions. might be thought to prove that the four- Over the dissent of three Justices, the Justice plurality standard has met the test Court held in Davis v. Bandemer that, of time—but for the fact that its applica- since it was ‘‘not persuaded that there are tion has almost invariably produced the no judicially discernible and manageable same result (except for the incurring of standards by which political gerrymander attorney’s fees) as would have obtained if cases are to be decided,’’ 478 U.S., at 123, the question were nonjusticiable: Judicial 106 S.Ct. 2797, such cases were justiciable. intervention has been refused. As one The clumsy shifting of the burden of proof commentary has put it, ‘‘[t]hroughout its for the premise (the Court was ‘‘not per- subsequent history, Bandemer has served suaded’’ that standards do not exist, rather almost exclusively as an invitation to litiga- than ‘‘persuaded’’ S 279that they do) was ne- tion without much prospect of redress.’’ cessitated by the uncomfortable fact that S. Issacharoff, P. Karlan, & R. Pildes, The the six-Justice majority could not discern Law of Democracy 886 (rev.2d ed.2002). what the judicially discernable standards The one case in which relief was provided might be. There was no majority on that (and merely preliminary relief, at that) did point. Four of the Justices finding justici- not involve the drawing of district lines; 5

5. See Republican Party of North Carolina v. ing, as modified, a preliminary injunction). Martin, 980 F.2d 943 (C.A.4 1992) (upholding Martin dealt with North Carolina’s system of denial of Federal Rule of Civil Procedure electing superior court judges statewide, a 12(b)(6) judgment for the defendants); Repub- system that had resulted in the election of lican Party of North Carolina v. North Car- only a single Republican judge since 1900. olina State Bd. of Elections, 27 F.3d 563 980 F.2d, at 948. Later developments in the (C.A.4 1994) (unpublished opinion) (uphold- case are described in n. 8, infra. 1778 124 SUPREME COURT REPORTER 541 U.S. 279 in all of the cases we are aware of involv- revisiting the question whether the stan- ing that most S 280common form of political dard promised by Bandemer exists. As gerrymandering, relief was denied.6 the following discussion reveals, no judi- Moreover, although the case in which relief cially discernible and manageable stan- was provided seemingly involved the ne dards for adjudicating political gerryman- plus ultra of partisan manipulation, see n. dering claims have emerged. Lacking 5, supra, we would be at a loss to explain them, we must conclude that political ger- why the Bandemer line should have been rymandering claims are nonjusticiable and drawn just there, and should not have that Bandemer was wrongly decided. embraced several districting plans that were upheld despite allegations of extreme A partisan discriminaStion,281 bizarrely shaped districts, and disproportionate results. We begin our review of possible stan- See, e.g., Session v. Perry, 298 F.Supp.2d dards with that proposed by Justice 451 (E.D.Tex.2004) (per curiam); O’Lear White’s plurality opinion in Bandemer be- v. Miller, 222 F.Supp.2d 850 (E.D.Mich.), cause, as the narrowest ground for our summarily aff’d, 537 U.S. 997, 123 S.Ct. decision in that case, it has been the stan- 512, 154 L.Ed.2d 391 (2002); Badham v. dard employed by the lower courts. The Eu, 694 F.Supp. 664, 670 (N.D.Cal.1988), plurality concluded that a political gerry- summarily aff’d, 488 U.S. 1024, 109 S.Ct. mandering claim could succeed only where 829, 102 L.Ed.2d 962 (1989). To think that plaintiffs showed ‘‘both intentional discrim- this lower court jurisprudence has brought ination against an identifiable political forth ‘‘judicially discernible and managea- group and an actual discriminatory effect ble standards’’ would be fantasy. on that group.’’ 478 U.S., at 127, 106 S.Ct. Eighteen years of judicial effort with 2797. As to the intent element, the plural- virtually nothing to show for it justify us in ity acknowledged that ‘‘[a]s long as redis-

6. For cases in which courts rejected prayers v. Weprin, 796 F.Supp. 662 (N.D.N.Y.) (three- for relief under Davis v. Bandemer, 478 U.S. judge panel), summarily aff’d, 506 U.S. 1017, 109, 106 S.Ct. 2797, 92 L.Ed.2d 85 (1986), 113 S.Ct. 650, 121 L.Ed.2d 577 (1992); Hol- see, e.g., Duckworth v. State Administration loway v. Hechler, 817 F.Supp. 617 (S.D.W.Va. Bd. of Election Laws, 332 F.3d 769 (C.A.4 1992) (three-judge panel), summarily aff’d, 2003); Smith v. Boyle, 144 F.3d 1060 (C.A.7 507 U.S. 956, 113 S.Ct. 1378, 122 L.Ed.2d 1998); La Porte County Republican Central 754 (1993); Hastert v. State Bd. of Elections, Comm. v. Board of Comm’rs of County of La 777 F.Supp. 634 (N.D.Ill.1991) (three-judge Porte, 43 F.3d 1126 (C.A.7 1994); Session v. panel); Anne Arundel County Republican Cen- Perry, 298 F.Supp.2d 451 (E.D.Tex.2004) (per tral Comm. v. State Administrative Bd. of Elec- curiam); Martinez v. Bush, 234 F.Supp.2d tion Laws, 781 F.Supp. 394 (D.Md.1991) 1275 (S.D.Fla.2002) (three-judge panel); (three-judge panel), summarily aff’d, 504 U.S. O’Lear v. Miller, 222 F.Supp.2d 850 938, 112 S.Ct. 2269, 119 L.Ed.2d 197 (1992); (E.D.Mich.), summarily aff’d, 537 U.S. 997, Republican Party of Virginia v. Wilder, 774 123 S.Ct. 512, 154 L.Ed.2d 391 (2002); Mary- F.Supp. 400 (W.D.Va.1991) (three-judge pan- landers for Fair Representation, Inc. v. Schae- el); Badham v. Eu, 694 F.Supp. 664, 670 fer, 849 F.Supp. 1022 (D.Md.1994) (three- (N.D.Cal.1988), summarily aff’d, 488 U.S. judge panel); Terrazas v. Slagle, 821 F.Supp. 1024, 109 S.Ct. 829, 102 L.Ed.2d 962 (1989); 1162 (W.D.Tex.1993) (three-judge panel); In re 2003 Legislative Apportionment of House Pope v. Blue, 809 F.Supp. 392 (W.D.N.C.) of Representatives, 2003 ME 81, 827 A.2d 810; (three-judge panel), summarily aff’d, 506 U.S. McClure v. Secretary of Commonwealth, 436 801, 113 S.Ct. 30, 121 L.Ed.2d 3 (1992); Illi- Mass. 614, 766 N.E.2d 847 (2002); Legislative nois Legislative Redistricting Comm’n v. LaP- Redistricting Cases, 331 Md. 574, 629 A.2d aille, 782 F.Supp. 1272 (N.D.Ill.1992); Fund 646 (1993); Kenai Peninsula Borough v. State, for Accurate and Informed Representation, Inc. 743 P.2d 1352 (Alaska 1987). 541 U.S. 283 VIETH v. JUBELIRER 1779 Cite as 124 S.Ct. 1769 (2004)

tricting is done by a legislature, it should manageable and arbitrary or else evolve not be very difficult to prove that the towards some loose form of proportionali- likely political consequences of the reap- ty.’’ Id., at 155, 106 S.Ct. 2797 (opinion portionment were intended.’’ Id., at 129, concurring in judgment, joined by Burger, 106 S.Ct. 2797. However, the effects C. J., and REHNQUIST, J.). A similar prong was significantly harder to satisfy. prediction of unmanageability was ex- Relief could not be based merely upon the pressed in Justice Powell’s opinion, making fact that a group of persons banded to- it the prognostication of a majority of the gether for political purposes had failed to Court. See id., at 171, 106 S.Ct. 2797 achieve representation commensurate with (‘‘The TTT most basic flaw in the plurality’s its numbers, or that the apportionment opinion is its failure to enunciate any stan- scheme made its winning of elections more dard that affords guidance to legislatures difficult. Id., at 132, 106 S.Ct. 2797. and courts’’). That prognostication has Rather, S 282it would have to be shown that, been amply fulfilled. taking into account a variety of historic factors and projected election results, the In the lower courts, the legacy of the group had been ‘‘denied its chance to effec- plurality’s test is one long record of puzzle- tively influence the political process’’ as a ment and consternation. See, e.g., Ses- whole, which could be achieved even with- sion, supra, at 474 (‘‘Throughout this case out electing a candidate. Id., at 132–133, we have borne S 283witness to the powerful, 106 S.Ct. 2797. It would not be enough to conflicting forces nurtured by Bandemer’s establish, for example, that Democrats had holding that the judiciary is to address been ‘‘placed in a district with a superma- ‘excessive’ partisan line-drawing, while jority of other Democratic voters’’ or that leaving the issue virtually unenforceable’’); the district ‘‘departs from pre-existing po- Vieth I, 188 F.Supp.2d, at 544 (noting that litical boundaries.’’ Id., at 140–141, 106 the ‘‘recondite standard enunciated in S.Ct. 2797. Rather, in a challenge to an Bandemer offers little concrete guidance’’); individual district the inquiry would focus Martinez v. Bush, 234 F.Supp.2d 1275, ‘‘on the opportunity of members of the 1352 (S.D.Fla.2002) (three-judge court) group to participate in party deliberations (Jordan, J., concurring) (the ‘‘lower courts in the slating and nomination of candi- continue to struggle in an attempt to inter- dates, their opportunity to register and pret and apply the ‘discriminatory effect’ vote, and hence their chance to directly prong of the [Bandemer] standard’’); influence the election returns and to se- O’Lear, supra, at 855 (describing Bandem- cure the attention of the winning candi- er’s standard for assessing discriminatory date.’’ Id., at 133, 106 S.Ct. 2797. A effect as ‘‘somewhat murky’’). The test statewide challenge, by contrast, would in- has been criticized for its indeterminacy by volve an analysis of ‘‘the voters’ direct or a host of academic commentators. See, indirect influence on the elections of the e.g., L. Tribe, American Constitutional state legislature as a whole.’’ Ibid. (em- Law § 13–9, p. 1083 (2d ed. 1988) (‘‘Nei- phasis added). With what has proved to ther Justice White’s nor Justice Powell’s be a gross understatement, the plurality approach to the question of partisan ap- acknowledged this was ‘‘of necessity a dif- portionment gives any real guidance to ficult inquiry.’’ Id., at 143, 106 S.Ct. 2797. lower courts forced to adjudicate this issue In her Bandemer concurrence, Justice TTT’’); Still, Hunting of the Gerrymander, O’CONNOR predicted that the plurality’s 38 UCLA L.Rev. 1019, 1020 (1991) (noting standard ‘‘will over time either prove un- that the plurality opinion has ‘‘confounded 1780 124 SUPREME COURT REPORTER 541 U.S. 283 legislators, practitioners, and academics achieve partisan advantage,’’ which can be alike’’); Schuck, The Thickest Thicket: shown ‘‘by direct evidence or by circum- Partisan Gerrymandering and Judicial stantial evidence that other neutral and Regulation of Politics, 87 Colum. L.Rev. legitimate redistricting criteria were sub- 1325, 1365 (1987) (noting that the Bandem- ordinated to the goal of achieving partisan er plurality’s standard requires judgments advantage.’’ Brief for Appellants 19 (em- that are ‘‘largely subjective and beg ques- phasis added). As compared with the tions that lie at the heart of political com- Bandemer plurality’s test of mere intent to petition in a democracy’’); Issacharoff, disadvantage the plaintiff’s group, this pro- Judging Politics: The Elusive Quest for posal seemingly makes the standard more Judicial Review of Political Fairness, 71 difficult to meet—but only at the expense Texas L.Rev. 1643, 1671 (1993) (‘‘Bandem- of making the standard more indetermi- er begot only confusion’’); Grofman, An nate. Expert Witness Perspective on Continuing ‘‘Predominant intent’’ to disadvantage and Emerging Voting Rights Controver- the plaintiff ’s political group refers to the sies, 21 Stetson L.Rev. 783, 816 (1992) relative importance of that goal as com- (‘‘[A]s far as I am aware I am one of only pared with all the other goals that the map two people who believe that Bandemer seeks to pursue—contiguity of districts, makes sense. Moreover, the other person, compactness of districts, observance of the Daniel Lowenstein, has a diametrically op- lines of political subdivision, protection of posed view as to what the plurality opinion incumbents of all parties, cohesion of natu- means’’). Because this standard was mis- ral racial and ethnic neighborhoods, com- guided when proposed, has not been im- pliance with requirements of the Voting proved in subsequent application, and is Rights Act of 1965 regarding racial distri- bution, etc. Appellants contend that their not even deSfended284 before us today by the appellants, we decline to affirm it as a intent test must be discernible and man- constitutional requirement. ageable because it has been borrowed from our racial gerrymandering cases. B See Miller v. Johnson, 515 U.S. 900, 115 S.Ct. 2475, 132 L.Ed.2d 762 S (1995); Appellants take a run at enunciating 285 Shaw v. Reno, 509 U.S. 630, 113 S.Ct. their own workable standard based on Ar- 2816, 125 L.Ed.2d 511 (1993). To begin ticle I, § 2, and the Equal Protection with, in a very important respect that is Clause. We consider it at length not only not so. In the racial gerrymandering con- because it reflects the litigant’s view as to text, the predominant intent test has been the best that can be derived from 18 years applied to the challenged district in which of experience, but also because it shares the plaintiffs voted. See Miller, supra; many features with other proposed stan- United States v. Hays, 515 U.S. 737, 115 dards, so that what is said of it may be S.Ct. 2431, 132 L.Ed.2d 635 (1995). Here, said of them as well. Appellants’ proposed however, appellants do not assert that an standard retains the two-pronged frame- apportionment fails their intent test if any work of the Bandemer plurality—intent single district does so. Since ‘‘it would be plus effect—but modifies the type of show- quixotic to attempt to bar state legisla- ing sufficient to satisfy each. tures from considering politics as they re- To satisfy appellants’ intent standard, a draw district lines,’’ Brief for Appellants 3, plaintiff must ‘‘show that the mapmakers appellants propose a test that is satisfied acted with a predominant intent to only when ‘‘partisan advantage was the 541 U.S. 287 VIETH v. JUBELIRER 1781 Cite as 124 S.Ct. 1769 (2004)

predominant motivation behind the entire district is so substantially affected by the statewide plan,’’ id., at 32 (emphasis add- presence of a rare and constitutionally sus- ed). Vague as the ‘‘predominant motiva- pect motive as to invalidate it is quite tion’’ test might be when used to evaluate different from determining whether it is so single districts, it all but evaporates when substantially affected by the excess of an applied statewide. Does it mean, for in- ordinary and lawful motive as to invalidate stance, that partisan intent must outweigh it. Moreover, the fact that partisan dis- all other goals—contiguity, compactness, tricting is a lawful and common practice preservation of neighborhoods, etc.—state- means that there is almost always room wide? And how is the statewide ‘‘out- for an election-impeding lawsuit contend- weighing’’ to be determined? If three- ing that partisan advantage was the pre- fifths of the map’s districts forgo the pur- dominant motivation; not so for claims of suit of partisan ends in favor of strictly racial gerrymandering. Finally, courts observing political-subdivision lines, and might be justified in accepting a modest only two-fifths ignore those lines to disad- degree of unmanageability to enforce a vantage the plaintiffs, is the observance of constitutional command which (like the political subdivisions the ‘‘predominant’’ Fourteenth Amendment obligation to re- goal between those two? We are sure frain from racial discrimination) is clear; appellants do not think so. whereas they are not justified in inferring Even within the narrower compass of a judicially enforceable constitutional obli- challenges to a single district, applying a gation (the obligation not to apply too ‘‘predominant intent’’ test to racial gerry- much partisanship in districting) which is mandering is easier and less disruptive. both dubious and severely unmanageable. The Constitution clearly contemplates dis- For these reasons, to the extent that our tricting by political entities, see Article I, racial gerrymandering cases represent a § 4, and unsurprisingly that turns out to model of discernible and manageable stan- be root-and-branch a matter of politics. dards, they provide no comfort here. See Miller, supra, at 914, 115 S.Ct. 2475 The effects prong of appellants’ proposal (‘‘[R]edistricting in most cases will impli- replaces the Bandemer plurality’s vague cate a political calculus in which various test of ‘‘denied its chance to effectively interests compete for recognition TTT’’); influence the political process,’’ 478 U.S., at Shaw, supra, at 662, 113 S.Ct. 2816 (White, 132–133, 106 S.Ct. 2797, with criteria that J., dissenting) (‘‘[D]istricting inevitably is are seemingly more specific. The requi- the expression of interest group politics site effect is established when ‘‘(1) the TTT’’); Gaffney v. Cummings, 412 U.S. plaintiffs show that the districts systemat- 735, 753, 93 S.Ct. 2321, 37 L.Ed.2d 298 ically ‘pack’ and ‘crack’ the rival party’s (1973) (‘‘The reality is that districting inev- voters,7 and (2) the court’s examination of itably has and is intended to have subSstan- the ‘totality of circumstances’ confirms tial286 political consequences’’). By con- that the map can thwart the plaintiffs’ trast, the purpose of segregating voters on ability to translate a majority of votes into

the basis of race is not a lawful one, and is a majority S 287of seats.’’ Brief for Appel- much more rarely encountered. Deter- lants 20 (emphasis and footnote added). mining whether the shape of a particular This test is loosely based on our cases

7. ‘‘Packing’’ refers to the practice of filling a a group or party among several districts to district with a supermajority of a given group deny that group or party a majority in any of or party. ‘‘Cracking’’ involves the splitting of those districts. 1782 124 SUPREME COURT REPORTER 541 U.S. 287

applying § 2 of the Voting Rights Act of whether this particular standard is judi-

1965, 42 U.S.C. § 1973, to discrimination cially S 288manageable we question whether by race, see, e.g., Johnson v. De Grandy, it is judicially discernible in the sense of 512 U.S. 997, 114 S.Ct. 2647, 129 L.Ed.2d being relevant to some constitutional viola- 775 (1994). But a person’s politics is rare- tion. Deny it as appellants may (and do), ly as readily discernible—and never as this standard rests upon the principle that permanently discernible—as a person’s groups (or at least political-action groups) race. Political affiliation is not an immuta- have a right to proportional representa- ble characteristic, but may shift from one tion. But the Constitution contains no election to the next; and even within a such principle. It guarantees equal pro- given election, not all voters follow the tection of the law to persons, not equal party line. We dare say (and hope) that representation in government to equiva- the political party which puts forward an lently sized groups. It nowhere says that utterly incompetent candidate will lose farmers or urban dwellers, Christian fun- even in its registration stronghold. These damentalists or Jews, Republicans or facts make it impossible to assess the ef- Democrats, must be accorded political fects of partisan gerrymandering, to fash- strength proportionate to their numbers.9 ion a standard for evaluating a violation, and finally to craft a remedy. See Ban- Even if the standard were relevant, demer, supra, at 156, 106 S.Ct. 2797 however, it is not judicially manageable. (O’CONNOR, J., concurring in judgment).8 To begin with, how is a party’s majority Assuming, however, that the effects of status to be established? Appellants pro- partisan gerrymandering can be deter- pose using the results of statewide races mined, appellants’ test would invalidate the as the benchmark of party support. But districting only when it prevents a majori- as their own complaint describes, in the ty of the electorate from electing a majori- 2000 Pennsylvania statewide elections ty of representatives. Before considering some Republicans won and some Demo-

8. A delicious illustration of this is the one case thought (with good reason) ‘‘directly at odds we have found—alluded to above—that pro- with the recent prediction by the district vided relief under Bandemer. See n. 5, supra. court,’’ id., at 470, 1996 WL 60439, at *2, In Republican Party of North Carolina v. causing it to remand the case for reconsidera- Hunt, No. 94–2410, 1996 WL 60439 (C.A.4, tion. Feb.12, 1996) (per curiam) (unpublished), judgt. order reported at 77 F.3d 470, the 9. The Constitution also does not share appel- District Court, after a trial with no less than lants’ alarm at the asserted tendency of parti- 311 stipulations by the parties, 132 witness san gerrymandering to create more partisan statements, approximately 300 exhibits, and 2 representatives. Assuming that assertion to days of oral argument, concluded that North Carolina’s system of electing superior court be true, the Constitution does not answer the judges on a statewide basis ‘‘had resulted in question whether it is better for Democratic Republican candidates experiencing a consis- voters to have their State’s congressional del- tent and pervasive lack of success and exclu- egation include 10 wishy-washy Democrats sion from the electoral process as a whole (because Democratic voters are ‘‘effectively’’ and that these effects were likely to continue distributed so as to constitute bare majorities unabated into the future.’’ 77 F.3d, at 470, in many districts), or 5 hardcore Democrats 1996 WL 60439, at *1. In the elections for (because Democratic voters are tightly packed superior court judges conducted just five days in a few districts). Choosing the former ‘‘di- after this pronouncement, ‘‘every Republican lutes’’ the vote of the radical Democrat; candidate standing for the office of superior choosing the latter does the same to the mod- court judge was victorious at the state level,’’ erate. Neither Article I, § 2, nor the Equal ibid., a result which the Fourth Circuit Protection Clause takes sides in this dispute. 541 U.S. 290 VIETH v. JUBELIRER 1783 Cite as 124 S.Ct. 1769 (2004) crats won. See Juris. Statement 137a– nia, which, according to appellants’ own 138a (describing how Democratic candi- pleadings, were conducted under a judicial- dates received more votes for President ly drawn district map ‘‘free from partisan and auditor general, and Republicans re- gerrymandering.’’ Juris. Statement 137a. ceived more votes for United States Sena- On this ‘‘neutral playing fiel[d],’’ the Dem- tor, attorney general, and treasurer). ocrats’ statewide majority of the major- Moreover, to think that majority status in party vote (50.6%) translated into a minor- statewide races establishes majority status ity of seats (10, versus 11 for the Republi- for district contests, one would have to cans). Id., at 133a, 137a. Whether by believe that the only factor determining reason of partisan districting or not, party voting behavior at all levels is political constituents may always wind up ‘‘packed’’ affiliation. That is assuredly not true. As in some districts and ‘‘cracked’’ throughout one law review comment has put it: others. See R. Dixon, Democratic Repre-

S 289‘‘There is no statewide vote in this sentation 462 (1968) (‘‘All Districting Is country for the House of Representa- ‘Gerrymandering’ ’’); Schuck, 87 Colum.

tives or the state legislature. Rather, L.Rev., at 1359. Consider, for S 290example, there are separate elections between a legislature that draws district lines with separate candidates in separate districts, no objectives in mind except compactness and that is all there is. If the districts and respect for the lines of political subdi- change, the candidates change, their visions. Under that system, political strengths and weaknesses change, their groups that tend to cluster (as is the case campaigns change, their ability to raise with Democratic voters in cities) would be money changes, the issues change—ev- systematically affected by what might be erything changes. Political parties do called a ‘‘natural’’ packing effect. See not compete for the highest statewide Bandemer, 478 U.S., at 159, 106 S.Ct. 2797 vote totals or the highest mean district (O’CONNOR, J., concurring in judgment). vote percentages: They compete for Our one-person, one-vote cases, see specific seats.’’ Lowenstein & Stein- Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. berg, The Quest for Legislative District- 1362, 12 L.Ed.2d 506 (1964); Wesberry v. ing in the Public Interest: Elusive or Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 Illusory, 33 UCLA L.Rev. 1, 59–60 L.Ed.2d 481 (1964), have no bearing upon (1985). this question, neither in principle nor in See also Schuck, Partisan Gerrymander- practicality. Not in principle, because to ing: A Political Problem Without Judicial say that each individual must have an Solution, in Political Gerrymandering and equal say in the selection of representa- the Courts 240, 241 (B. Grofman ed.1990). tives, and hence that a majority of individ- But if we could identify a majority party, uals must have a majority say, is not at all we would find it impossible to ensure that to say that each discernible group, wheth- that party wins a majority of seats—unless er farmers or urban dwellers or political we radically revise the States’ traditional parties, must have representation equiva- structure for elections. In any winner- lent to its numbers. And not in practicali- take-all district system, there can be no ty, because the easily administrable stan- guarantee, no matter how the district lines dard of population equality adopted by are drawn, that a majority of party votes Wesberry and Reynolds enables judges to statewide will produce a majority of seats decide whether a violation has occurred for that party. The point is proved by the (and to remedy it) essentially on the basis 2000 congressional elections in Pennsylva- of three readily determined factors— 1784 124 SUPREME COURT REPORTER 541 U.S. 290

where the plaintiff lives, how many voters gest a constitutionally based, judicially are in his district, and how many voters manageable standard, the standard pro- are in other districts; whereas requiring posed in his opinion also falls short of the judges to decide whether a districting sys- mark. It is essentially a totality-of-the- tem will produce a statewide majority for a circumstances analysis, where all conceiva- majority party casts them forth upon a sea ble factors, none of which is dispositive, of imponderables, and asks them to make are weighed with an eye to ascertaining determinations that not even election ex- whether the particular gerrymander has perts can agree upon. gone too far—or, in Justice Powell’s termi- For these reasons, we find appellants’ nology, whether it is not ‘‘fair.’’ ‘‘Fair- proposed standards neither discernible nor ness’’ does not seem to us a judicially manageable. manageable standard. Fairness is com- patible with noncontiguous districts, it is C compatible with districts that straddle po- For many of the same reasons, we also litical subdivisions, and it is compatible reject the standard suggested by Justice with a party’s not winning the number of Powell in Bandemer. He agreed with the seats that mirrors the proportion of its plurality that a plaintiff should show intent vote. Some criterion more solid and more and effect, but believed that the ultimate demonstrably met than that seems to us inquiry ought to focus on whether district necessary to enable the state legislatures boundaries had been drawn solely for par- to discern the limits of their districting discretion, to meaningfully constrain the tiSsan291 ends to the exclusion of ‘‘all other neutral factors relevant to the fairness of discretion of the courts, and to win public redistricting.’’ 478 U.S., at 161, 106 S.Ct. acceptance for the courts’ intrusion into a 2797 (opinion concurring in part and dis- process that is the very foundation of dem- senting in part); see also id., at 164–165, ocratic decisionmaking. 106 S.Ct. 2797. Under that inquiry, the courts should consider numerous factors, S 292IV though ‘‘[n]o one factor should be disposi- We turn next to consideration of the tive.’’ Id., at 173, 106 S.Ct. 2797. The standards proposed by today’s dissenters. most important would be ‘‘the shapes of We preface it with the observation that the voting districts and adherence to estab- mere fact that these four dissenters come lished political subdivision boundaries.’’ up with three different standards—all of Ibid. ‘‘Other relevant considerations in- them different from the two proposed in clude the nature of the legislative proce- Bandemer and the one proposed here by dures by which the apportionment law was appellants—goes a long way to establish- adopted and legislative history reflecting ing that there is no constitutionally discer- contemporaneous legislative goals.’’ Ibid. nible standard. These factors, which ‘‘bear directly on the fairness of a redistricting plan,’’ combined A with ‘‘evidence concerning population dis- Justice STEVENS concurs in the judg- parities and statistics tending to show vote ment that we should not address plaintiffs’ dilution,’’ make out a claim of unconstitu- statewide political gerrymandering chal- tional partisan gerrymandering. Ibid. lenges. Though he reaches that result via While Justice Powell rightly criticized standing analysis, post, at 1805, 1806 (dis- the Bandemer plurality for failing to sug- senting opinion), while we reach it through 541 U.S. 294 VIETH v. JUBELIRER 1785 Cite as 124 S.Ct. 1769 (2004) political-question analysis, our conclusions post, at 1803—but all he brings forward to are the same: these statewide claims are contest that is the argument that an exces- nonjusticiable. sive injection of politics is unlawful. So it Justice STEVENS would, however, re- is, and so does our opinion assume. That quire courts to consider political gerry- does not alter the reality that setting out mandering challenges at the individual- to segregate voters by race is unlawful and district level. Much of his dissent is ad- hence rare, and setting out to segregate dressed to the incompatibility of severe them by political affiliation is (so long as partisan gerrymanders with democratic one doesn’t go too far) lawful and hence principles. We do not disagree with that ordinary. judgment, any more than we disagree Justice STEVENS’s confidence that with the judgment that it would be uncon- what courts have done with racial gerry- stitutional for the Senate to employ, in im- peachment proceedings, procedures that mandering can be done with political ger- are incompatible with its obligation to rymandering rests in part upon his belief ‘‘try’’ impeachments. See Nixon v. Unit- that ‘‘the same standards should apply,’’ ed States, 506 U.S. 224, 113 S.Ct. 732, 122 post, at 1810. But in fact the standards L.Ed.2d 1 (1993). The issue we have dis- are quite different. A purpose to discrimi- cussed is not whether severe partisan ger- nate on the basis of race receives the rymanders violate the Constitution, but strictest scrutiny under the Equal Protec- whether it is for the courts to say when a tion Clause, while a similar purpose to violation has occurred, and to design a discriminate on the basis of politics does remedy. On that point, Justice STE- not. ‘‘[N]othing in our case law compels VENS’s dissent is less helpful, saying, es- the conclusion that racial and political ger- sentially, that if we can do it in the racial rymanders are subject to precisely the gerrymandering context we can do it here. same constitutional scrutiny. In fact, our We have examined, supra, at 1780–1782, country’s long and persistent history of the many reasons why that is not so. Only racial discrimination in voting—as well as a few of them are challenged by Justice our Fourteenth Amendment jurispru- STEVENS. He says that we ‘‘mistakenly dence, which always has reserved the assum[e] that race cannot provide a legiti- strictest scrutiny for discrimination on the basis of race—would seem to compel the mate basis for making politiScal293 judg- ments.’’ Post, at 1811. But we do not say opposite conclusion.’’ Shaw, 509 U.S., at that race-conscious decisionmaking is al- 650, 113 S.Ct. 2816 (citation omitted). ways unlawful. Race can be used, for That quoted passage was in direct re- example, as an indicator to achieve the sponse to (and rejection of) the suggestion purpose of neighborhood cohesiveness in made by Justices White and STEVENS in districting. What we have said is imper- dissent that ‘‘a racial gerrymander of the missible is ‘‘the purpose of segregating sort alleged here is functionally equivalent voters on the basis of race,’’ supra, at to S 294gerrymanders for nonracial purposes, 1781—that is to say, racial gerrymander- such as political gerrymanders.’’ Ibid. ing for race’s sake, which would be the See also Bush v. Vera, 517 U.S. 952, 964, equivalent of political gerrymandering for 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996) politics’ sake. Justice STEVENS says we (plurality opinion) (‘‘We have not subjected ‘‘er[r] in assuming that politics is ‘an ordi- political gerrymandering to strict scruti- nary and lawful motive’ ’’ in districting, ny’’). 1786 124 SUPREME COURT REPORTER 541 U.S. 294

Justice STEVENS relies on First fact that there S 295exist standards which Amendment cases to suggest that political- this Court could apply—the proposition ly discriminatory gerrymanders are sub- which much of Justice STEVENS’s opin- ject to strict scrutiny under the Equal ion is devoted to establishing, see, e.g., Protection Clause. See post, at 1803. It post, at 1801–1804, 1812–1813—does not is elementary that scrutiny levels are claim mean that those standards are discernible specific. An action that triggers a height- in the Constitution. This Court may not ened level of scrutiny for one claim may willy-nilly apply standards—even manage- receive a very different level of scrutiny able standards—having no relation to con- for a different claim because the underly- stitutional harms. Justice STEVENS ing rights, and consequently constitutional points out, see post, at 1804–1805, n. 15, harms, are not comparable. To say that that Bandemer said differences between suppression of political speech (a claimed racial and political groups ‘‘may be rele- First Amendment violation) triggers strict vant to the manner in which the case is scrutiny is not to say that failure to give adjudicated, but these differences do not political groups equal representation (a justify a refusal to entertain such a case.’’ claimed equal protection violation) triggers 478 U.S., at 125, 106 S.Ct. 2797. As 18 strict scrutiny. Only an equal protection years have shown, Bandemer was wrong. claim is before us in the present case— perhaps for the very good reason that a First Amendment claim, if it were sus- B tained, would render unlawful all consider- Justice SOUTER, like Justice STE- ation of political affiliation in districting, VENS, would restrict these plaintiffs, on just as it renders unlawful all consider- the allegations before us, to district-specif- ation of political affiliation in hiring for ic political gerrymandering claims. Post, non-policy-level government jobs. What at 1817, 1820 (dissenting opinion). Unlike cases such as Elrod v. Burns, 427 U.S. 347, Justice STEVENS, however, Justice 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), re- SOUTER recognizes that there is no exist- quire is not merely that Republicans be ing workable standard for adjudicating given a decent share of the jobs in a such claims. He proposes a ‘‘fresh start,’’ Democratic administration, but that politi- post, at 1816: a newly constructed stan- cal affiliation be disregarded. dard loosely based in form on our Title VII Having failed to make the case for strict cases, see McDonnell Douglas Corp. v. scrutiny of political gerrymandering, Jus- Green, 411 U.S. 792, 93 S.Ct. 1817, 36 tice STEVENS falls back on the argument L.Ed.2d 668 (1973), and complete with a that scrutiny levels simply do not matter five-step prima facie test sewn together for purposes of justiciability. He asserts from parts of, among other things, our that a standard imposing a strong pre- Voting Rights Act jurisprudence, law re- sumption of invalidity (strict scrutiny) is no view articles, and apportionment cases. more discernible and manageable than a Even if these self-styled ‘‘clues’’ to uncon- standard requiring an evenhanded balanc- stitutionality could be manageably applied, ing of all considerations with no thumb on which we doubt, there is no reason to think the scales (ordinary scrutiny). To state they would detect the constitutional crime this is to refute it. As is well known, strict which Justice SOUTER is investigating— scrutiny readily, and almost always, re- an ‘‘extremity of unfairness’’ in partisan sults in invalidation. Moreover, the mere competition. Post, at 1815. 541 U.S. 297 VIETH v. JUBELIRER 1787 Cite as 124 S.Ct. 1769 (2004)

Under Justice SOUTER’s proposed to this question is to evade it: ‘‘It is not standard, in order to challenge a particular necessary now to say exactly how a district district, a plaintiff must show (1) that he is court would balance a good showing on one a member of a ‘‘cohesive political group’’; of these indices against a poor showing on (2) ‘‘that the district of his residence TTT another, for that sort of detail is best paid little or no heed’’ to traditional dis- worked out case by case.’’ Post, at 1818. tricting principles; (3) that there were But the devil lurks precisely in such detail. ‘‘specific corSrelations between the dis- 296 The central problem is determining when trict’s deviations from traditional district- political gerrymandering has gone too far. ing principles and the distribution of the It does not solve that problem to break population of his group’’; (4) that a hypo- thetical district exists which includes the down the original unanswerable quesStion297 plaintiff’s residence, remedies the packing (How much political motivation and effect or cracking of the plaintiff’s group, and is too much?) into four more discrete but deviates less from traditional districting equally unanswerable questions. principles; and (5) that ‘‘the defendants Justice SOUTER’s proposal is doomed acted intentionally to manipulate the shape to failure for a more basic reason: No of the district in order to pack or crack his group.’’ Post, at 1817–1819. When those test—yea, not even a five-part test—can showings have been made, the burden possibly be successful unless one knows would shift to the defendants to justify the what he is testing for. In the present district ‘‘by reference to objectives other context, the test ought to identify depriva- than naked partisan advantage.’’ Post, at tion of that minimal degree of representa- 1819. tion or influence to which a political group While this five-part test seems eminent- is constitutionally entitled. As we have ly scientific, upon analysis one finds that seen, the Bandemer test sought (unhelp- each of the last four steps requires a quan- fully, but at least gamely) to specify what tifying judgment that is unguided and ill that minimal degree was: ‘‘[a] chance to suited to the development of judicial stan- effectively influence the political process.’’ dards: How much disregard of traditional 478 U.S., at 133, 106 S.Ct. 2797. So did districting principles? How many correla- the appellants’ proposed test: ‘‘[the] ability tions between deviations and distribution? to translate a majority of votes into a How much remedying of packing or crack- majority of seats.’’ Brief for Appellants ing by the hypothetical district? How 20. Justice SOUTER avoids the difficul- many legislators must have had the intent ties of those formulations by never telling to pack and crack—and how efficacious us what his test is looking for, other than must that intent have been (must it have the utterly unhelpful ‘‘extremity of unfair- been, for example, a sine qua non cause of ness.’’ He vaguely describes the harm he the districting, or a predominant cause)? At step two, for example, Justice SOUT- is concerned with as vote dilution, post, at ER would require lower courts to assess 1820, a term which usually implies some whether mapmakers paid ‘‘little or no heed actual effect on the weight of a vote. But to TTT traditional districting principles.’’ no element of his test looks to the effect of Post, at 1817. What is a lower court to do the gerrymander on the electoral success, when, as will often be the case, the district the electoral opportunity, or even the polit- adheres to some traditional criteria but not ical influence, of the plaintiff ’s group. We others? Justice SOUTER’s only response do not know the precise constitutional de- 1788 124 SUPREME COURT REPORTER 541 U.S. 297 privation his test is designed to identify some effect results from the intent.’’ Post, and prevent. at 1815. Thus, again like us, he recognizes Even if (though it is implausible) Justice that ‘‘the issue is one of how much is too SOUTER believes that the constitutional much.’’ Ibid. And once those premises are deprivation consists of merely ‘‘vote dilu- conceded, the only line that can be drawn tion,’’ his test would not even identify that must be based, as Justice SOUTER again effect. Despite his claimed reliance on the candidly admits, upon a substantive ‘‘no- McDonnell Douglas framework, Justice tio[n] of fairness.’’ Ibid. This is the same SOUTER would allow the plaintiff no op- flabby goal that deprived Justice Powell’s portunity to show that the mapmakers’ test of all determinacy. To be sure, Jus- compliance with traditional districting fac- tice SOUTER frames it somewhat differ- tors is pretextual.10 His reason for this S298 ently: Courts must intervene, he says, is never stated, but it certainly cannot be when ‘‘partisan competition has reached an that adherence to traditional districting extremity of unfairness.’’ Post, at 1815 factors negates any possibility of intention- (emphasis added). We do not think the al vote dilution. As we have explained above, packing and cracking, whether in- problem is solved by adding the modifier. tentional or no, are quite consistent with adherence to compactness and respect for S 299C political subdivision lines. See supra, at 1783. An even better example is the tradi- We agree with much of Justice BREY- tional criterion of incumbency protection. ER’s dissenting opinion, which convincing- Justice SOUTER has previously acknowl- ly demonstrates that ‘‘political consider- edged it to be a traditional and constitu- ations will likely play an important, and tionally acceptable districting principle. proper, role in the drawing of district See Vera, 517 U.S., at 1047–1048, 116 S.Ct. boundaries.’’ Post, at 1823. This places 1941 (dissenting opinion). Since that is so, Justice BREYER, like the other dissen- his test would not protect those who are ters, in the difficult position of drawing the packed, and often tightly so, to ensure the line between good politics and bad politics. reelection of representatives of either par- Unlike them, he would tackle this problem ty. Indeed, efforts to maximize partisan at the statewide level. representation statewide might well begin with packing voters of the opposing party The criterion Justice BREYER propos- into the districts of existing incumbents of es is nothing more precise than ‘‘the un- that party. By this means an incumbent is justified use of political factors to entrench protected, a potential adversary to the dis- a minority in power.’’ Post, at 1825 (em- tricting mollified, and votes of the oppos- phasis in original). While he invokes in ing party are diluted. passing the Equal Protection Clause, it Like us, Justice SOUTER acknowledges should be clear to any reader that what and accepts that ‘‘some intent to gain polit- constitutes unjustified entrenchment de- ical advantage is inescapable whenever po- pends on his own theory of ‘‘effective gov- litical bodies devise a district plan, and ernment.’’ Post, at 1823. While one must

10. Justice SOUTER would allow a State, in fense does not arise until the plaintiff has proving its affirmative defense, to demon- established his prima facie case. And that strate that the reasons given for the district’s prima facie case fails when, under step two, shape ‘‘were more than a mere pretext for an the district on its face complies with tradition- old-fashioned gerrymander.’’ Post, at 1820. al districting criteria. But the need to establish that affirmative de- 541 U.S. 301 VIETH v. JUBELIRER 1789 Cite as 124 S.Ct. 1769 (2004)

agree with Justice BREYER’s incredibly whether an entire statewide plan is moti- abstract starting point that our Constitu- vated by political or neutral justifications, tion sought to create a ‘‘basically demo- see supra, at 1781, 1783. And even at cratic’’ form of government, post, at 1822, that, the last two scenarios do not even that is a long and impassable distance purport to provide an answer, presumably away from the conclusion that the Judicia- leaving it to each district court to deter- ry may assess whether a group (somehow mine whether, under those circumstances, defined) has achieved a level of political ‘‘unjustified entrenchment’’ has occurred. power (somehow defined) commensurate In sum, we neither know precisely what with that to which they would be entitled Justice BREYER is testing for, nor pre- absent unjustified political machinations cisely what fails the test. (whatever that means). Justice BREYER provides no real guid- But perhaps the most surprising omis- ance for the journey. Despite his promise sion from Justice BREYER’s dissent, giv- to do so, ibid., he never tells us what he is en his views on other matters, is the ab- testing for, beyond the unhelpful ‘‘unjusti- sence of any cost-benefit analysis. Justice fied entrenchment.’’ Post, at 1825. In- BREYER acknowledges that ‘‘a majority stead, he ‘‘set[s] forth several sets of cir- normally can work its political will,’’ post, cumstances that lay out the indicia of at 1826, and well describes the number of abuse,’’ ‘‘along a continuum,’’ post, at 1828, actors, from statewide executive officers, proceeding (presumably) from the most to redistricting commissions, to Congress, clearly unconstitutional to the possibly un- to the People in ballot initiatives and refer- constitutional. With regard to the first enda, that stand ready to make that hap- ‘‘scenario,’’ he is willing to assert that the pen. See post, at 1826. He gives no indicia ‘‘would be sufficient to support a instance (and we know none) of permanent claim.’’ Post, at 1828. This seems re- frustration of majority will. But where freshingly categorical, until one realizes the majority has failed to assert itself for that the indicia consist not merely of the some indeterminate period (two successive failure of the party receiving the majority elections, if we are to believe his first of votes to acquire S a majority of seats in 300 scenario), Justice BREYER simply as- two successive elections, but also of the sumes that ‘‘court action may prove neces- fact that there is no ‘‘neutral’’ explanation for this phenomenon. Ibid. But of course sary,’’ post, at 1827. Why so? In the real there always is a neutral explanation—if world, of course, court action that is avail- only the time-honored criterion of incum- able tends to be sought, not just where it bent protection. The indicia set forth in is necessary, but where it is in the interest Justice BREYER’s second scenario ‘‘could of the seeking party. And the vaguer the also add up to unconstitutional gerryman- test S 301for availability, the more frequently dering,’’ post, at 1828 (emphasis added); interest rather than necessity will produce and for those in the third ‘‘a court may litigation. Is the regular insertion of the conclude that the map crosses the constitu- judiciary into districting, with the delay tional line,’’ post, at 1828 (emphasis added). and uncertainty that brings to the political We find none of this helpful. Each scenar- process and the partisan enmity it brings io suffers from at least one of the problems upon the courts, worth the benefit to be we have previously identified, most notably achieved—an accelerated (by some un- the difficulties of assessing partisan known degree) effectuation of the majority strength statewide and of ascertaining will? We think not. 1790 124 SUPREME COURT REPORTER 541 U.S. 301

V 1795. We think not. When it has come to Justice KENNEDY recognizes that we determining what areas fall beyond our have ‘‘demonstrat[ed] the shortcomings of Article III authority to adjudicate, this the other standards that have been consid- Court’s practice, from the earliest days of ered to date,’’ post, at 1794 (opinion con- the Republic to the present, has been curring in judgment). He acknowledges, more reminiscent of Hannibal than of moreover, that we ‘‘lack TTT comprehen- Hamlet. On July 18, 1793, Secretary of sive and neutral principles for drawing State Thomas Jefferson wrote the Justices electoral boundaries,’’ post, at 1793; and at the direction of President Washington, that there is an ‘‘absence of rules to limit asking whether they might answer ‘‘ques- and confine judicial intervention,’’ ibid. tions [that] depend for their solution on From these premises, one might think that the construction of our treaties, on the Justice KENNEDY would reach the con- laws of nature and nations, and on the clusion that political gerrymandering laws of the land,’’ but that arise ‘‘under claims are nonjusticiable. Instead, howev- circumstances which do not give a cogni- er, he concludes that courts should contin- sance of them to the tribunals of the coun- ue to adjudicate such claims because a try.’’ 3 Correspondence and Public Pa- standard may one day be discovered. pers of John Jay 486–487 (H. Johnston ed. 1891) (emphasis in original). The letter The first thing to be said about Justice specifically invited the Justices to give less KENNEDY’s disposition is that it is not than a categorical yes-or-no answer, offer- legally available. The District Court in ing to present the particular questions this case considered the plaintiffs’ claims ‘‘from which [the Justices] will themselves justiciable but dismissed them because the strike out such as any circumstances standard for unconstitutionality had not might, in their opinion, forbid them to been met. It is logically impossible to pronounce on.’’ Id., at 487. On August 8, affirm that dismissal without either (1) 1793, the Justices responded in a categori- finding that the unconstitutional-districting cal and decidedly ‘‘impatient’’ manner, standard applied by the District Court, or saying that the giving of advisory opin- some other standard that it should have ions—not just advisory opinions on partic- applied, has not been met, or (2) finding ular questions but all advisory opinions, (as we have) that the claim is nonjusticia- presumably even those concerning legisla- ble. Justice KENNEDY seeks to affirm tion affecting the Judiciary—was beyond ‘‘[b]ecause, in the case before us, we have their power. ‘‘[T]he lines of separation no standard.’’ Post, at 1796. But it is our drawn by the Constitution between the job, not the plaintiffs’, to explicate the three departments of the government’’ standard that makes the facts alleged by prevented it. Id., at 488. The Court re- the plaintiffs adequate or inadequate to jected the more ‘‘cautious’’ course of not state a claim. We cannot nonsuit them for ‘‘deny[ing] all hopes of intervention,’’ post, our failure to do so. at 1794, but leaving the door open to the

S 302Justice KENNEDY asserts that to possibility that at least some advisory declare nonjusticiability would be incau- opinions (on a theory we could not yet tious. Post, at 1795. Our rush to such a imagine) would not violate the separation holding after a mere 18 years of fruitless of powers. In Gilligan v. Morgan, 413 litigation ‘‘contrasts starkly’’ he says, U.S. 1, 7, 93 S.Ct. 2440, 37 L.Ed.2d 407 ‘‘with the more patient approach’’ that this (1973), a case filed after the Ohio National

Court has taken in the past. Post, at Guard’s shooting S 303of students at Kent 541 U.S. 304 VIETH v. JUBELIRER 1791 Cite as 124 S.Ct. 1769 (2004)

State University, the plaintiffs sought ‘‘ini- mere two years later in Reynolds v. Sims, tial judicial review and continuing surveil- 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 lance by a federal court over the training, (1964).) But the judgment under review in weaponry, and orders of the Guard.’’ The Baker, unlike the one under review here, Court held the suit nonjusticiable; the did not demand the determination of a matter was committed to the political standard. The lower S 304court in Baker branches because, inter alia, ‘‘it is difficult had held the apportionment claim of the to conceive of an area of governmental plaintiffs nonjusticiable, and so it was logi- activity in which the courts have less com- cally possible to dispose of the appeal by petence.’’ Id., at 10, 93 S.Ct. 2440. The simply disagreeing with the nonjusticiabili- Court did not adopt the more ‘‘cautious’’ ty determination. As we observed earlier, course of letting the lower courts try their that is not possible here, where the lower hand at regulating the military before we court has held the claim justiciable but declared it impossible. Most recently, in unsupported by the facts. We must either Nixon v. United States, the Court, joined enunciate the standard that causes us to by Justice KENNEDY, held that a claim agree or disagree with that merits judg- that the Senate had employed certain im- ment, or else affirm that the claim is be- permissible procedures in trying an im- yond our competence to adjudicate. peachment was a nonjusticiable political Justice KENNEDY worries that ‘‘[a] de- question. Our decision was not limited to termination by the Court to deny all hopes the particular procedures under challenge, of intervention could erode confidence in and did not reserve the possibility that the courts as much as would a premature sometime, somewhere, technology or the decision to intervene.’’ Post, at 1794–1795. wisdom derived from experience might But it is the function of the courts to make a court challenge to Senate impeach- provide relief, not hope. What we think ment all right. would erode confidence is the Court’s re- The only cases Justice KENNEDY cites fusal to do its job—announcing that there in defense of his never-say-never approach may well be a valid claim here, but we are are Baker v. Carr and Bandemer. See not yet prepared to figure it out. More- post, at 1795. Bandemer provides no cov- over, that course does more than erode er. There, all of the Justices who conclud- confidence; by placing the district courts ed that political gerrymandering claims back in the business of pretending to af- are justiciable proceeded to describe what ford help when they in fact can give none, they regarded as the discernible and man- it deters the political process from afford- ageable standard that rendered it so. The ing genuine relief. As was noted by a lower courts were set wandering in the lower court confronted with a political ger- wilderness for 18 years not because the rymandering claim: Bandemer majority thought it a good idea, ‘‘When the Supreme Court resolves Vi- but because five Justices could not agree eth, it may choose to retreat from its upon a single standard, and because the decision that the question is justiciable, standard the plurality proposed turned out or it may offer more guidance on the not to work. nature of the required effectTTTT We As for Baker v. Carr: It is true enough have learned firsthand what will result if that, having had no experience whatever in the Court chooses to do neither. apportionment matters of any sort, the Throughout this case we have borne wit- Court there refrained from spelling out the ness to the powerful, conflicting forces equal protection standard. (It did so a nurtured by Bandemer’s holding that 1792 124 SUPREME COURT REPORTER 541 U.S. 304

the judiciary is to address ‘excessive’ § 4, provides a judicially enforceable limit partisan line-drawing, while leaving the on the political considerations that the issue virtually unenforceable. Inevita- States and Congress may take into account bly, as the political party in power uses when districting. district lines to lock in its present advan- Considerations of stare decisis do not tage, the party out of power attempts to compel us to allow Bandemer to stand. stretch the protective cover of the Vot- That case involved an interpretation of the ing Rights Act, urging dilution of critical Constitution, and the claims of stare deci- standards that may, if accepted, aid sis are at their weakest in that field, where

their party in the short-run but S 305work our mistakes cannot be corrected by Con- to the detriment of persons now protect- gress. See Payne v. Tennessee, 501 U.S. ed by the Act in the long-run. Casting 808, 828, 111 S.Ct. 2597, 115 L.Ed.2d 720 the appearance both that there is a (1991). They are doubly weak in Bandem-

wrong and that the judiciary stands er because the maSjority’s306 inability to ready with a remedy, Bandemer as ap- enunciate the judicially discernible and plied steps on legislative incentives for manageable standard that it thought exist- self-correction.’’ Session, 298 ed (or did not think did not exist) presaged F.Supp.2d, at 474. the need for reconsideration in light of But the conclusive refutation of Justice subsequent experience. And they are tri- KENNEDY’s position is the point we first ply weak because it is hard to imagine how made: it is not an available disposition. any action taken in reliance upon Bandem- We can affirm because political districting er could conceivably be frustrated—except presents a nonjusticiable question; or we the bringing of lawsuits, which is not the can affirm because we believe the correct sort of primary conduct that is relevant. standard which identifies unconstitutional While we do not lightly overturn one of political districting has not been met; we our own holdings, ‘‘when governing deci- cannot affirm because we do not know sions are unworkable or are badly rea- what the correct standard is. Reduced to soned, ‘this Court has never felt con- its essence, Justice KENNEDY’s opinion strained to follow precedent.’ ’’ 501 U.S., boils down to this: ‘‘As presently advised, at 827, 111 S.Ct. 2597 (quoting Smith v. I know of no discernible and manageable Allwright, 321 U.S. 649, 665, 64 S.Ct. 757, standard that can render this claim justici- 88 L.Ed. 987 (1944)). Eighteen years of able. I am unhappy about that, and hope essentially pointless litigation have per- that I will be able to change my opinion in suaded us that Bandemer is incapable of the future.’’ What are the lower courts to principled application. We would there- make of this pronouncement? We suggest fore overrule that case, and decline to ad- judicate these political gerrymandering that they must treat it as a reluctant fifth claims. vote against justiciability at district and statewide levels—a vote that may change The judgment of the District Court is in some future case but that holds, for the affirmed. time being, that this matter is nonjusticia- It is so ordered. ble. Justice KENNEDY, concurring in the VI judgment. We conclude that neither Article I, § 2, A decision ordering the correction of all nor the Equal Protection Clause, nor (what election district lines drawn for partisan appellants only fleetingly invoke) Article I, reasons would commit federal and state 541 U.S. 308 VIETH v. JUBELIRER 1793 Cite as 124 S.Ct. 1769 (2004) courts to unprecedented intervention in A determination that a gerrymander vio- the American political process. The Court lates the law must rest on something more is correct to refrain from directing this than the conclusion that political classifica- substantial intrusion into the Nation’s po- tions were applied. It must rest instead litical life. While agreeing with the plural- on a conclusion that the classifications, ity that the complaint the appellants filed though generally permissible, were applied in the District Court must be dismissed, in an invidious manner or in a way unrelat- and while understanding that great caution ed to any legitimate legislative objective. is necessary when approaching this sub- The object of districting is to establish ject, I would not foreclose all possibility of ‘‘fair and effective representation for all judicial relief if some limited and precise citizens.’’ Reynolds v. Sims, 377 U.S. 533, rationale were found to correct an estab- 565–568, 84 S.Ct. 1362, 12 L.Ed.2d 506 lished violation of the Constitution in some (1964). At first it might seem that courts redistricting cases. could determine, by the exercise of their own judgment, whether political classifica- When presented with a claim of injury tions are related to this object or instead from partisan gerrymandering, courts con- burden representational rights. The lack, front two obstacles. First is the lack of however, of any agreed upon model of fair comprehensive and neutral principles for and effective representation makes this drawing S 307electoral boundaries. No sub- analysis difficult to pursue. stantive definition of fairness in districting The second obstacle—the absence of seems to command general assent. Sec- rules to confine judicial intervention—is ond is the absence of rules to limit and related to the first. Because there are yet confine judicial intervention. With uncer- no agreed upon substantive principles of tain limits, intervening courts—even when fairness in districting, we have no basis on proceeding with best intentions—would which to define clear, manageSable, and risk assuming political, not legal, responsi- 308 politically neutral standards for measuring bility for a process that often produces ill the particular burden a given partisan will and distrust. classification imposes on representational That courts can grant relief in district- rights. Suitable standards for measuring ing cases where race is involved does not this burden, however, are critical to our answer our need for fairness principles intervention. Absent sure guidance, the here. Those controversies implicate a dif- results from one gerrymandering case to ferent inquiry. They involve sorting per- the next would likely be disparate and missible classifications in the redistricting inconsistent. context from impermissible ones. Race is In this case, we have not overcome these an impermissible classification. See Shaw obstacles to determining that the chal- v. Reno, 509 U.S. 630, 113 S.Ct. 2816, 125 lenged districting violated appellants’ L.Ed.2d 511 (1993). Politics is quite a rights. The fairness principle appellants different matter. See Gaffney v. Cum- propose is that a majority of voters in the mings, 412 U.S. 735, 752, 93 S.Ct. 2321, 37 Commonwealth should be able to elect a L.Ed.2d 298 (1973) (‘‘It would be idle, we majority of the Commonwealth’s congres- think, to contend that any political consid- sional delegation. There is no authority eration taken into account in fashioning a for this precept. Even if the novelty of reapportionment plan is sufficient to invali- the proposed principle were accompanied date it’’). by a convincing rationale for its adoption, 1794 124 SUPREME COURT REPORTER 541 U.S. 308

there is no obvious way to draw a satisfac- 89 (1990) (documenting the author’s ser- tory standard from it for measuring an vice as a special master responsible for alleged burden on representational rights. redistricting Connecticut and noting that The plurality demonstrates the shortcom- his final plan so benefited the Democratic ings of the other standards that have been Party, albeit unintentionally, that the party considered to date. See ante, at Parts III chairman personally congratulated him); and IV (demonstrating that the standards M. Altman, Modeling the Effect of Manda- proposed in Davis v. Bandemer, 478 U.S. tory District Compactness on Partisan 109, 106 S.Ct. 2797, 92 L.Ed.2d 85 (1986), Gerrymanders, 17 Pol. Geography 989, by the parties before us, and by our dis- 1000–1006 (1998) (explaining that compact- senting colleagues are either unmanagea- ness standards help Republicans because ble or inconsistent with precedent, or Democrats are more likely to live in high both). I would add two comments to the density regions). plurality’s analysis. The first is that the parties have not shown us, and I have not The challenge in finding a manageable been able to discover, helpful discussions standard for assessing burdens on repre- on the principles of fair districting dis- sentational rights has long been recog- cussed in the annals of parliamentary or nized. See Lowenstein & Steinberg, The legislative bodies. Our attention has not Quest for Legislative Districting in the been drawn to statements of principled, Public Interest: Elusive or Illusory? 33 well-accepted rules of fairness that should UCLA L.Rev. 1, 74 (1985) (‘‘[W]hat mat- govern districting, or to helpful formula- ters to us, and what we think matters to tions of the legislator’s duty in drawing almost all Americans when district lines district lines. are drawn, is how the fortunes of the Second, even those criteria that might parties and the policies the parties stand seem promising at the outset (e.g., contigu- for are affected. When such things are at ity and compactness) are not altogether stake there is no neutrality. There is only sound as independent judicial standards political contest’’). The dearth of helpful for measuring a burden on representation- historical guidance must, in part, cause al rights. They cannot promise political this uncertainty. neutrality when used as the basis for re- lief. Instead, it seems, a decision under There are, then, weighty arguments for holding cases like these to be nonjusticia- these standards would S 309unavoidably have significant political effect, whether intend- ble; and those arguments may prevail in ed or not. For example, if we were to the long run. In my view, however, the demand that congressional districts take a arguments are not so compelling that they particular shape, we could not assure the require us now to bar all future claims of parties that this criterion, neutral enough injury from a partisan gerrymander. It is on its face, would not in fact benefit one not in our tradition to foreclose the judicial

political party over another. See Gaffney, process from the atStempt310 to define stan- supra, at 753, 93 S.Ct. 2321 (‘‘District lines dards and remedies where it is alleged are rarely neutral phenomena. They can that a constitutional right is burdened or well determine what district will be pre- denied. Nor is it alien to the Judiciary to dominantly Democratic or predominantly draw or approve election district lines. Republican, or make a close race likely’’); Courts, after all, already do so in many see also R. Bork, The Tempting of Amer- instances. A determination by the Court ica: The Political Seduction of the Law 88– to deny all hopes of intervention could 541 U.S. 311 VIETH v. JUBELIRER 1795 Cite as 124 S.Ct. 1769 (2004)

erode confidence in the courts as much as cededly the basic aim of legislative appor- would a premature decision to intervene. tionment,’’ a legislature’s reliance on other Our willingness to enter the political apportionment interests is invalid, arbi- thicket of the apportionment process with trary, and capricious action if it leads to respect to one-person, one-vote claims unequal populations among districts). The makes it particularly difficult to justify a plurality’s response that in Baker this categorical refusal to entertain claims Court sat in review only of a nonjusticiabil- against this other type of gerrymandering. ity holding is wide of the mark. See ante, The plurality’s conclusion that absent an at 1791. As the plurality itself instructs: ‘‘easily administrable standard,’’ ante, at Before a court can conclude that it ‘‘has 1783, the appellants’ claim must be nonjus- [any] business entertaining [a] claim,’’ it ticiable contrasts starkly with the more must conclude that some ‘‘judicially en- patient approach of Baker v. Carr, 369 forceable righ[t]’’ is at issue. Ante, at U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 1776. Whether a manageable standard (1962), not to mention the controlling prec- made the right at issue in Baker enforce- edent on the question of justiciability of able was as much a necessary inquiry Davis v. Bandemer, supra, the case the there as it is here. In light of Baker and plurality would overrule. See ante, at Davis v. Bandemer, which directly address 1792. the question of nonjusticiability in the spe- In Baker the Court made clear that the cific context of districting and of asserted more abstract standards that guide analy- violations of the Fourteenth Amendment, sis of all Fourteenth Amendment claims the plurality’s further survey of cases in- sufficed to ensure justiciability of a one- volving different approaches to the justici- person, one-vote claim. See 369 U.S., at ability of different claims cannot be 226, 82 S.Ct. 691. thought controlling. See ante, at 1790. ‘‘Nor need the appellants, in order to Even putting Baker to the side—and so succeed in this action, ask the Court to assuming that the existence of a workable enter upon policy determinations for standard for measuring a gerrymander’s which judicially manageable standards burden on representational rights distin- are lacking. Judicial standards under guishes one-person, one-vote claims from the Equal Protection Clause are well partisan gerrymandering claims for justici- developed and familiar, and it has been ability purposes—I would still reject the open to courts since the enactment of plurality’s conclusions as to nonjusticiabili- the Fourteenth Amendment to deter- ty. Relying on the distinction between a mine, if on the particular facts they claim having or not having a workable must, that a discrimination reflects no standard of that sort involves a difficult policy, but simply arbitrary and capri- proof: proof of a categorical negative. cious action.’’ Ibid. That is, the different treatment of claims The Court said this before the more specif- otherwise so alike hinges entirely on proof ic standard with which we are now familiar that no standard could exist. This is a emerged to measure the burden nonequi- difficult proposition to establish, for prov- populous districting causes on representa- ing a negative is a challenge in any con- tional rights. See Reynolds, 377 U.S., at text. 565–568, 84 S.Ct. 1362 (concluding that That no such standard has emerged in

S 311‘‘[s]ince the achieving of fair and effec- this case should not be taken to prove tive representation for all citizens is con- that none will emerge in the future. 1796 124 SUPREME COURT REPORTER 541 U.S. 311

Where important rights are involved, the can use databases to map electoral dis- impossibility of full analytical satisfaction tricts in a matter of hours, not months. is reason to err on the side of caution. See, e.g., Larios v. Cox, 305 F.Supp.2d Allegations of unconstitutional bias in ap- 1335 (N.D.Ga.2004) (per curiam). Tech-

portionment are S 312most serious claims, nology is both a threat and a promise. On for we have long believed that ‘‘the right the one hand, if courts refuse to entertain to vote’’ is one of ‘‘those political processes any claims of partisan gerrymandering, ordinarily to be relied upon to protect mi- the temptation to use partisan favoritism norities.’’ United States v. Carolene in districting in an unconstitutional man- Products Co., 304 U.S. 144, 153, n. 4, 58 ner will grow. On the other hand, these

S.Ct. 778, 82 L.Ed. 1234 (1938). If a new S 313technologies may produce new State passed an enactment that declared methods of analysis that make more evi- ‘‘All future apportionment shall be drawn dent the precise nature of the burdens so as most to burden Party X’s rights to gerrymanders impose on the representa- fair and effective representation, though tional rights of voters and parties. That still in accord with one-person, one-vote would facilitate court efforts to identify principles,’’ we would surely conclude the and remedy the burdens, with judicial in- Constitution had been violated. If that is tervention limited by the derived stan- so, we should admit the possibility re- dards. mains that a legislature might attempt to If suitable standards with which to mea- reach the same result without that ex- sure the burden a gerrymander imposes press directive. This possibility suggests on representational rights did emerge, that in another case a standard might hindsight would show that the Court pre- emerge that suitably demonstrates how an maturely abandoned the field. That is a apportionment’s de facto incorporation of risk the Court should not take. Instead, partisan classifications burdens rights of we should adjudicate only what is in the fair and effective representation (and so papers before us. See Baker, 369 U.S., at establishes the classification is unrelated 331, 82 S.Ct. 691 (Harlan, J., dissenting) to the aims of apportionment and thus is (concluding that the malapportionment used in an impermissible fashion). claim ‘‘should have been dismissed for ‘fail- The plurality says that 18 years, in ef- ure to state a claim upon which relief can fect, prove the negative. Ante, at 1792 be granted’ ’’ because ‘‘[u]ntil it is first (‘‘Eighteen years of essentially pointless decided to what extent [the] right [to ap- litigation have persuaded us’’). As Justice portion] is limited by the Federal Constitu- SOUTER is correct to point out, however, tion, and whether what [a State] has done during these past 18 years the lower or failed to do TTT runs afoul of any such courts could do no more than follow Davis limitation, we need not reach the issues of v. Bandemer, which formulated a single, ‘justiciability’ or ‘political question’ ’’). apparently insuperable standard. See Because, in the case before us, we have post, at 1816 (dissenting opinion). More- no standard by which to measure the bur- over, by the timeline of the law 18 years is den appellants claim has been imposed on rather a short period. In addition, the their representational rights, appellants rapid evolution of technologies in the ap- cannot establish that the alleged political portionment field suggests yet unexplored classifications burden those same rights. possibilities. Computer assisted district- Failing to show that the alleged classifica- ing has become so routine and sophisticat- tions are unrelated to the aims of appor- ed that legislatures, experts, and courts tionment, appellants’ evidence at best dem- 541 U.S. 315 VIETH v. JUBELIRER 1797 Cite as 124 S.Ct. 1769 (2004)

onstrates only that the legislature adopted other contexts are unconstitutional absent political classifications. That describes no a compelling government interest. See constitutional flaw, at least under the gov- id., at 362, 96 S.Ct. 2673. ‘‘Representative erning Fourteenth Amendment standard. democracy in any populous unit of gover- See Gaffney, 412 U.S., at 752, 93 S.Ct. nance is unimaginable without the ability 2321. As a consequence, appellants’ com- of citizens to band together in promoting plaint alleges no impermissible use of po- among the electorate candidates who es- litical classifications and so states no valid pouse their political views.’’ California claim on which relief may be granted. It Democratic Party v. Jones, 530 U.S. 567, must be dismissed as a result. See Fed. 574, 120 S.Ct. 2402, 147 L.Ed.2d 502 Rule Civ. Proc. 12(b)(6); see also Davis v. (2000). As these precedents show, First Bandemer, 478 U.S., at 134, 106 S.Ct. Amendment concerns arise where a State 2797. enacts a law that has the purpose and effect of subjecting a group of voters or The plurality thinks I resolve this case their party to disfavored treatment by rea- with reference to no standard, see ante, at son of their views. In the context of parti- 1790, but that is wrong. The san gerrymandering, that means that First FourSteenth Amendment standard gov- 314 Amendment concerns arise where an ap- erns; and there is no doubt of that. My portionment has the purpose and effect of analysis only notes that if a subsidiary burdening a group of voters’ representa- standard could show how an otherwise tional rights. permissible classification, as applied, bur- The plurality suggests there is no place dens representational rights, we could con- for the First Amendment in this area. clude that appellants’ evidence states a See ante, at 1786. The implication S is provable claim under the Fourteenth 315 that under the First Amendment any and Amendment standard. all consideration of political interests in an Though in the briefs and at argument apportionment would be invalid. Ibid. the appellants relied on the Equal Protec- (‘‘Only an equal protection claim is before tion Clause as the source of their substan- us in the present case—perhaps for the tive right and as the basis for relief, I note very good reason that a First Amendment that the complaint in this case also alleged claim, if it were sustained, would render a violation of First Amendment rights. unlawful all consideration of political affili- See Amended Complaint ¶ 48; Juris. ation in districting’’). That misrepresents Statement 145a. The First Amendment the First Amendment analysis. The inqui- may be the more relevant constitutional ry is not whether political classifications provision in future cases that allege uncon- were used. The inquiry instead is whether stitutional partisan gerrymandering. Af- political classifications were used to bur- ter all, these allegations involve the First den a group’s representational rights. If a Amendment interest of not burdening or court were to find that a State did impose penalizing citizens because of their partic- burdens and restrictions on groups or per- ipation in the electoral process, their vot- sons by reason of their views, there would ing history, their association with a politi- likely be a First Amendment violation, un- cal party, or their expression of political less the State shows some compelling in- views. See Elrod v. Burns, 427 U.S. 347, terest. Of course, all this depends first on 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (plu- courts’ having available a manageable rality opinion). Under general First standard by which to measure the effect of Amendment principles those burdens in the apportionment and so to conclude that 1798 124 SUPREME COURT REPORTER 541 U.S. 315

the State did impose a burden or restric- have failed to prove, under our ‘‘well devel- tion on the rights of a party’s voters. oped and familiar’’ standard, that these Where it is alleged that a gerrymander legislative classifications ‘‘reflec[t] no poli- had the purpose and effect of imposing cy, but simply arbitrary and capricious burdens on a disfavored party and its vot- action.’’ Baker, 369 U.S., at 226, 82 S.Ct. ers, the First Amendment may offer a 691. That said, courts must be cautious sounder and more prudential basis for in- about adopting a standard that turns on tervention than does the Equal Protection whether the partisan interests in the redis- Clause. The equal protection analysis tricting process were excessive. Exces- puts its emphasis on the permissibility of siveness is not easily determined. Consid- an enactment’s classifications. This works er these apportionment schemes: In one where race is involved since classifying by State, Party X controls the apportionment race is almost never permissible. It pres- process and draws the lines so it captures ents a more complicated question when the every congressional seat. In three other inquiry is whether a generally permissible States, Party Y controls the apportionment classification has been used for an imper- process. It is not so blatant or egregious, missible purpose. That question can only but proceeds by a more subtle effort, cap- be answered in the affirmative by the sub- turing less than all the seats in each State. sidiary showing that the classification as Still, the total effect of Party Y’s effort is applied imposes unlawful burdens. The to capture more new seats than Party X First Amendment analysis concentrates on captured. Party X’s gerrymander was whether the legislation burdens the repre- more egregious. Party Y’s gerrymander sentational rights of the complaining par- was more subtle. In my view, however, ty’s voters for reasons of ideology, beliefs, each is culpable. or political association. The analysis al- * * * lows a pragmatic or functional assessment The ordered working of our Republic, that accords some latitude to the States. and of the democratic process, depends on

See Eu v. San Francisco S 316County Demo- a sense of decorum and restraint in all cratic Central Comm., 489 U.S. 214, 109 branches of government, and in the citi- S.Ct. 1013, 103 L.Ed.2d 271 (1989); zenry itself. Here, one has the sense that Anderson v. Celebrezze, 460 U.S. 780, 103 legislative restraint was abandoned. That S.Ct. 1564, 75 L.Ed.2d 547 (1983). should not be thought to serve the inter- Finally, I do not understand the plurali- ests of our political order. Nor should it ty to conclude that partisan gerrymander- be thought to serve S 317our interest in dem- ing that disfavors one party is permissible. onstrating to the world how democracy Indeed, the plurality seems to acknowl- works. Whether spoken with concern or edge it is not. See ante, at 1785 (‘‘We do pride, it is unfortunate that our legislators not disagree with [the] judgment’’ that have reached the point of declaring that, ‘‘partisan gerrymanders [are incompatible] when it comes to apportionment: ‘‘ ‘We are with democratic principles’’); ibid. (noting in the business of rigging elections.’ ’’ that it is the case, and that the plurality Hoeffel, Six Incumbents Are a Week Away opinion assumes it to be the case, that ‘‘an from Easy Election, Winston–Salem Jour- excessive injection of politics [in district- nal, Jan. 27, 1998, p. B1 (quoting a North ing] is unlawful’’). This is all the more Carolina state senator). reason to admit the possibility of later Still, the Court’s own responsibilities re- suits, while holding just that the parties quire that we refrain from intervention in 541 U.S. 318 VIETH v. JUBELIRER 1799 Cite as 124 S.Ct. 1769 (2004)

this instance. The failings of the many redistricting and would give license, for proposed standards for measuring the bur- the first time, to partisan gerrymanders den a gerrymander imposes on representa- that are devoid of any rational justification. tional rights make our intervention im- In my view, when partisanship is the legis- proper. If workable standards do emerge lature’s sole motivation—when any pre- to measure these burdens, however, courts tense of neutrality is forsaken unabashedly should be prepared to order relief. With and all traditional districting criteria are these observations, I join the judgment of subverted for partisan advantage—the the Court. governing body cannot be said to have acted impartially. Justice STEVENS, dissenting. Although we reaffirm the central hold- The central question presented by this ing of the Court in Davis v. Bandemer, case is whether political gerrymandering 478 U.S. 109, 106 S.Ct. 2797, 92 L.Ed.2d 85 claims are justiciable. Although our rea- (1986), we have not reached agreement on sons for coming to this conclusion differ, the standard that should govern partisan five Members of the Court are convinced gerrymandering claims. I would decide that the plurality’s answer to that question this case on a narrow ground. Plaintiffs- is erroneous. Moreover, as is apparent appellants urge us to craft new rules that from our separate writings today, we share in effect would authorize judicial review of the view that, even if these appellants are statewide election results to protect the not entitled to prevail, it would be contrary democratic process from a transient ma- to precedent and profoundly unwise to jority’s abuse of its power to define voting foreclose all judicial review of similar districts. I agree with the plurality’s re- claims that might be advanced in the fu- fusal to undertake that ambitious project. ture. That we presently have somewhat Ante, at 1780–1784. I am persuaded, how- differing views—concerning both the prec- ever, that the District Court failed to apply edential value of some of our recent cases well-settled propositions of law when it and the standard that should be applied in granted the defendants’ motion to dismiss future cases—should not obscure the fact plaintiff-appellant Susan Furey’s gerry- that the areas of agreement set forth in mandering claim. the separate opinions are of far greater According to the complaint, Furey is a significance. registered Democrat who resides at an The concept of equal justice under law address in Montgomery County, Pennsyl- requires the State to govern impartially. vania, that was located under the 1992 See Romer v. Evans, 517 U.S. 620, 623, districting plan in Congressional District 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996); 13.1 Under the new plan adopted by the Lehr v. Robertson, 463 U.S. 248, 265, 103 General Assembly in 2002, Furey’s address S.Ct. 2985, 77 L.Ed.2d 614 (1983); New now places her in the ‘‘non-compact’’ Dis- York City Transit Authority v. Beazer, trict 6.2 Furey alleges that the new dis- 440 U.S. 568, 587, 99 S.Ct. 1355, 59 tricting plan was created ‘‘solely’’ to effec- 3 L.Ed.2d 587 S 318(1979). Today’s plurality tuate the interests of Republicans, and opinion would exempt governing officials that the General Assembly relied ‘‘exclu- from that duty in the context of legislative sively’’ on a principle of ‘‘maximum parti-

1. App. to Juris. Statement 129a. 3. Id., at 142a.

2. Ibid. 1800 124 SUPREME COURT REPORTER 541 U.S. 318

4 san advantage’’ when drawing the plan. ing that concluSsion,320 we explained that

In my judgment, Furey’s S 319allegations are ‘‘legislatures TTT should be bodies which plainly sufficient to establish: (1) that she are collectively responsive to the popular has standing to challenge the constitution- will,’’ Reynolds v. Sims, 377 U.S. 533, 565, ality of District 6; (2) that her district- 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), and specific claim is not foreclosed by the Ban- we accordingly described ‘‘the basic aim of demer plurality’s rejection of a statewide legislative apportionment’’ as ‘‘achieving claim of political gerrymandering; and (3) TTT fair and effective representation for all that she has stated a claim that, at least citizens,’’ id., at 565–566, 84 S.Ct. 1362. with respect to District 6, Pennsylvania’s Consistent with that goal, we also re- redistricting plan violates the equal protec- viewed claims that the majority had dis- tion principles enunciated in our voting criminated against particular groups of rights cases both before and after Ban- voters by drawing multimember districts demer. The District Court therefore that threatened ‘‘to minimize or cancel out erred when it granted the defendants’ mo- the voting strength of racial or political tion to dismiss Furey’s claim. elements of the voting population.’’ Fort- son v. Dorsey, 379 U.S. 433, 439, 85 S.Ct. I 498, 13 L.Ed.2d 401 (1965). Such districts were ‘‘vulnerable’’ to constitutional chal- Prior to our seminal decision in Baker v. lenge ‘‘if racial or political groups ha[d] Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d been fenced out of the political process and 663 (1962), a majority of this Court had their voting strength invidiously mini- heeded Justice Frankfurter’s repeated mized.’’ Gaffney v. Cummings, 412 U.S. warnings about the dire consequences of 735, 754, 93 S.Ct. 2321, 37 L.Ed.2d 298 entering the ‘‘political thicket’’ of legisla- (1973). See also Whitcomb v. Chavis, 403 tive districting. Colegrove v. Green, 328 U.S. 124, 143, 91 S.Ct. 1858, 29 L.Ed.2d U.S. 549, 556, 66 S.Ct. 1198, 90 L.Ed. 1432 363 (1971); Burns v. Richardson, 384 U.S. (1946). As a result, even the most egre- 73, 88, 86 S.Ct. 1286, 16 L.Ed.2d 376 gious gerrymanders were sheltered from (1966). judicial review.5 It was after Baker that we first decided that the Constitution pro- Our holding in Bandemer, 478 U.S., at hibits legislators from drawing district 118–127, 106 S.Ct. 2797, that partisan ger- lines that diminish the value of individual rymandering claims are justiciable fol- votes in overpopulated districts. In reach- lowed ineluctably from the central reason-

4. Id., at 143a. peculiarly political nature and therefore not meet for judicial determination.’’ Id., at 552, 5. In Colegrove, for example, the Illinois Legis- 66 S.Ct. 1198. Fewer than 20 years later, the lature had drawn the State’s district lines Court, confronted with a strikingly similar set under the 1901 State Apportionment Act and had not reapportioned in the four ensuing of facts—a Tennessee apportionment plan set decades, ‘‘despite census figures indicating by a 1901 statute that had remained virtually great changes in the distribution of the popu- unchanged despite dramatic population lation.’’ 328 U.S., at 569, 66 S.Ct. 1198 growth—held, in obvious tension with Cole- (Black, J., dissenting). The populations of grove, that the complaint stated a justiciable Illinois’ districts in 1945 consequently ranged cause of action. Baker, 369 U.S., at 192, 197– from 112,000 in the least populous district to 198, 82 S.Ct. 691. The Court distinguished 900,000 in the most. Ibid. Nonetheless, the Colegrove as simply ‘‘a refusal to exercise eq- Court, per Justice Frankfurter, concluded that uity’s powers.’’ 369 U.S., at 235, 82 S.Ct. ‘‘due regard for the effective working of our 691. Government revealed this issue to be of a 541 U.S. 322 VIETH v. JUBELIRER 1801 Cite as 124 S.Ct. 1769 (2004)

ing in Baker, 369 U.S. 186, 82 S.Ct. 691, 7 boundaries of the city of Tuskegee ‘‘from a L.Ed.2d 663. What was true in Baker is square to an uncouth twenty-eight-sided no less true in this context: figure’’ for the sole purpose of preventing ‘‘The question here is the consistency of African–Americans from voting in munici- state action with the Federal Constitu- pal elections. The allegations of bizarre tion. We have no question decided, or shape and improper motive, ‘‘if proven, to be decided, by a political branch of would abundantly [have] establish[ed] that government coequal with this Court. Act 140 was not an ordinary geographic Nor do we risk embarrassment of our redistricting measure even within familiar government abroad, or grave distur- abuses of gerrymandering.’’ Id., at 341, 81 bance at home if we take issue with S.Ct. 125. Justice Fortas’ concurring [Pennsylvania] as to the constitutionality opinion in Kirkpatrick v. Preisler, 394 U.S. of her action here challenged. Nor need 526, 538, 89 S.Ct. 1225, 22 L.Ed.2d 519 the appellants, in order to succeed in (1969), which referred to gerrymandering this action, ask the Court to enter upon as ‘‘the deliberate and arbitrary distortion of district boundaries and populations for policy determinations for which judicial- partisan or personal political purposes,’’ ly manageable standards are lacking. also identified both shape and purpose as Judicial standards under the Equal Pro- relevant standards. The maps attached as tection Clause are well developed and exhibits in Gomillion, 364 U.S., at 348, 81 familiar, and it has been open to courts S.Ct. 125 (Appendix to opinion of the since the enactment of the Fourteenth Court), and in subsequent voting rights Amendment to determine, if on the par- cases demonstrate that an ‘‘uncouth’’ or ticular facts they must, that a discrimi- bizarre shape can easily identify a district nation reflects no policy, but simply designed for a single-minded, nonneutral arSbitrary and capricious action.’’ Id., 321 purpose. at 226, 82 S.Ct. 691 (footnote omitted). With purpose as the ultimate inquiry, ‘‘[T]hat the [gerrymandering] claim is sub- other considerations have supplied ready mitted by a political group, rather than a standards for testing the lawfulness of a racial group, does not distinguish [the gerrymander. In his dissent in Bandem- cases] in terms of justiciability.’’ Bandem- er, Justice Powell S 322explained that ‘‘the er, 478 U.S., at 125, 106 S.Ct. 2797. merits of a gerrymandering claim must be At issue in this case, as the plurality determined by reference to the configura- states, ante, at 1776, is Baker’s second tions of the districts, the observance of test—the presence or absence of judicially political subdivision lines, and other crite- manageable standards. The judicial stan- ria that have independent relevance to the dards applicable to gerrymandering claims fairness of redistricting.’’ 478 U.S., at 165, are deeply rooted in decisions that long 106 S.Ct. 2797. Applying this three-part preceded Bandemer and have been refined standard, Justice Powell first reviewed the in later cases. Among those well-settled procedures used in Indiana’s redistricting principles is the understanding that a dis- process and noted that the party in power trict’s peculiar shape might be a symptom had excluded the opposition from its delib- of an illicit purpose in the line-drawing erations and had placed excessive weight process. Most notably, in Gomillion v. on data concerning party voting trends. Lightfoot, 364 U.S. 339, 340, 81 S.Ct. 125, 5 Id., at 175–176, 106 S.Ct. 2797. Second, L.Ed.2d 110 (1960), the Court invalidated Justice Powell pointed to the strange an Alabama statute that altered the shape of districts that conspicuously ig- 1802 124 SUPREME COURT REPORTER 541 U.S. 322

nored traditional districting principles. where ‘‘race for its own sake, and not Id., at 176–177, 106 S.Ct. 2797. He noted other districting principles, was the legisla- the impact of such shapes on residents of ture’s dominant and controlling rationale the uncouth districts,6 and he included in in drawing its district lines,’’ Miller v. his opinion maps that illustrated the irreg- Johnson, 515 U.S. 900, 913, 115 S.Ct. 2475, ularity of the district shapes, id., at 181, 132 L.Ed.2d 762 (1995). See S 323also Eas- 183, 106 S.Ct. 2797. Third and finally, ley v. Cromartie, 532 U.S. 234, 241, 121 Justice Powell reviewed other ‘‘substantial S.Ct. 1452, 149 L.Ed.2d 430 (2001); Shaw evidence,’’ including contemporaneous v. Hunt, 517 U.S. 899, 905, 116 S.Ct. 1894, 7 statements and press accounts, demon- 135 L.Ed.2d 207 (1996) (Shaw II). The strating that the architects of the districts Shaw line of cases has emphasized that ‘‘were motivated solely by partisan consid- ‘‘reapportionment is one area in which ap- pearances do matter,’’ Shaw I, 509 U.S., at erations.’’ Id., at 177, 106 S.Ct. 2797. 647, 113 S.Ct. 2816, and has focused both The Court has made use of all three on the shape of the challenged districts parts of Justice Powell’s standard in its and the purpose behind the line-drawing in recent racial gerrymandering jurispru- assessing the constitutionality of majority- dence. In those cases, the Court has ex- minority districts under the Equal Protec- amined claims that redistricting schemes tion Clause. These decisions, like Justice violate the equal protection guarantee Powell’s opinion in Bandemer, have also where they are ‘‘so highly irregular’’ on considered the process by which the dis- their face that they ‘‘rationally cannot be tricting schemes were enacted,8 looked to understood as anything other than an ef- other evidence demonstrating that purely fort’’ to segregate voters by race, Shaw v. improper considerations motivated the de- Reno, 509 U.S. 630, 646–647, 113 S.Ct. cision,9 and included maps illustrating out- 2816, 125 L.Ed.2d 511 (1993) (Shaw I), or landish district shapes.10

6. ‘‘ ‘[T]he potential for voter disillusion and Justice Department’s objections to its original nonparticipation is great,’ as voters are forced plan, and the part that the operator of its to focus their political activities in artificial ‘‘reapportionment computer’’ played in de- electoral units. Intelligent voters, regardless signing the districts, to support its conclusion of party affiliation, resent this sort of political ‘‘that the legislature subordinated traditional manipulation of the electorate for no public districting principles to race.’’ See also Bush purpose.’’ 478 U.S., at 177, 106 S.Ct. 2797 v. Vera, 517 U.S. 952, 961–962, 116 S.Ct. (citation omitted). 1941, 135 L.Ed.2d 248 (1996) (plurality opin- ion) (discussing use of computer program to 7. The reasoning in these decisions followed manipulate district lines). not only from Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960), see 9. In Shaw II, 517 U.S. 899, 910, 116 S.Ct. Shaw I, 509 U.S., at 644–645, 113 S.Ct. 2816 1894, 135 L.Ed.2d 207 (1996), for instance, (relying on Gomillion ), but also from Justice the Court considered the fact that certain Powell’s observation in Davis v. Bandemer, reports regarding the effects of past discrimi- 478 U.S. 109, 173, n. 12, 106 S.Ct. 2797, 92 nation were not before the legislature and L.Ed.2d 85 (1986), that ‘‘[i]n some cases, therefore could not have played a role in the proof of grotesque district shapes may, with- districting process. out more, provide convincing proof of uncon- stitutional gerrymandering.’’ 10. Hunt v. Cromartie, 526 U.S. 541, 554, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999); Bush v. 8. In Miller v. Johnson, 515 U.S. 900, 917–919, Vera, 517 U.S., at 986, 116 S.Ct. 1941 (plural- 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995), the ity opinion); Miller, 515 U.S., at 928, 115 Court reviewed the procedures followed by S.Ct. 2475; Shaw I, 509 U.S., at 659, 113 the Georgia Legislature in responding to the S.Ct. 2816. 541 U.S. 325 VIETH v. JUBELIRER 1803 Cite as 124 S.Ct. 1769 (2004)

Given this clear line of precedents, I 2673, 49 L.Ed.2d 547 (1976) (plurality opin- should have thought the question of justici- ion), and discriminatory governmental de- ability in cases such as this—where a set cisions that burden fundamental First of plaintiffs argues that a single motivation Amendment interests are subject to strict resulted in a districting scheme with dis- scrutiny, id., at 363, 96 S.Ct. 2673; cf. criminatory effects—to be well settled. Police Dept. of Chicago v. Mosley, 408 U.S. The plurality’s contrary conclusion cannot 92, 94–95, 92 S.Ct. 2286, 33 L.Ed.2d 212 be S 324squared with our long history of (1972). Thus, unless party affiliation is an voting rights decisions. Especially per- appropriate requirement for the position in plexing is the plurality’s ipse dixit distinc- question, government officials may not tion of our racial gerrymandering cases. base a decision to hire, promote, transfer, Notably, the plurality does not argue that recall, discharge, or retaliate against an the judicially manageable standards that have been used to adjudicate racial gerry- employee, or to terminate a contract, on mandering claims would not be equally the individual’s partisan affiliation or manageable in political gerrymandering speech. See Board of Comm’rs, Wabaun- cases. Instead, its distinction of those see Cty. v. Umbehr, 518 U.S. 668, 674–675, cases rests on its view that race as a 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996); districting criterion is ‘‘much more rarely O’Hare Truck Service, Inc. v. City of encountered’’ than partisanship, ante, at Northlake, 518 U.S. 712, 716–717, 116 S.Ct. 1781, and that determining whether race— 2353, 135 L.Ed.2d 874 (1996); Rutan v. ‘‘a rare and constitutionally suspect mo- Republican Party of Ill., 497 U.S. 62, 64– tive’’—dominated a districting decision ‘‘is 65, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990);

quite different from determining whether Branti v. Finkel, 445 U.S. 507, S 325519–520, [such a decision] is so substantially affect- 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); ed by the excess of an ordinary and lawful Elrod, 427 U.S., at 355–363, 96 S.Ct. motive as to [be] invali[d],’’ ibid. But 2673.11 It follows that political affiliation is those considerations are wholly irrelevant not an appropriate standard for excluding to the issue of justiciability. voters from a congressional district. To begin with, the plurality errs in as- suming that politics is ‘‘an ordinary and The plurality argues that our patronage lawful motive.’’ We have squarely reject- cases do not support the proposition that ed the notion that a ‘‘purpose to discrimi- strict scrutiny should be applied in political nate on the basis of politics,’’ ante, at 1781, gerrymandering cases because ‘‘[i]t is ele- 1785, is never subject to strict scrutiny. mentary that scrutiny levels are claim spe- On the contrary, ‘‘political belief and asso- cific.’’ Ante, at 1786. It is also elementa- ciation constitute the core of those activi- ry, however, that the level of scrutiny is ties protected by the First Amendment,’’ relevant to the question whether there has Elrod v. Burns, 427 U.S. 347, 356, 96 S.Ct. been a constitutional violation, not the

11. The plurality opinion seems to assume that proper basis for striking it down,’’ id., at 95, the dissenting opinions in Umbehr, 518 U.S., 110 S.Ct. 2729. Cf. ante, at 1774–1775 (trac- at 686, 116 S.Ct. 2342 (SCALIA, J.), and Ru- ing the history of political gerrymanders to tan, 497 U.S., at 92, 110 S.Ct. 2729 (SCALIA, the beginning of the 18th century). But J.), correctly state the law—namely, that ‘‘[o]ur inquiry does not begin with the judg- ‘‘when a practice not expressly prohibited by ment of history’’; ‘‘[r]ather, inquiry must the text of the Bill of Rights bears the en- commence with identification of the constitu- dorsement of a long tradition of open, wide- tional limitations implicated by a challenged spread, and unchallenged use that dates back governmental practice.’’ Elrod, 427 U.S., at to the beginning of the Republic, we have no 354–355, 96 S.Ct. 2673. 1804 124 SUPREME COURT REPORTER 541 U.S. 325

question of justiciability.12 The standards State action that discriminates against outlined above are discernible and judicial- a political minority for the sole and una- ly manageable regardless of the number of dorned purpose of maximizing the power cases in which they must be applied or the of the majority plainly violates the deci- level of scrutiny at which the analysis oc- sionmaker’s duty to remain impartial. curs.13 Thus, the dicta from Shaw I and See, e.g., Lehr, 463 U.S., at 265, 103 Bush v. Vera, 517 U.S. 952, 116 S.Ct. 1941, S.Ct. 2985. Gerrymanders necessarily 135 L.Ed.2d 248 (1996), on which the plu- rest on legislators’ predictions that rality relies, ante, at 1785, are beside the ‘‘members of certain identifiable groups point, because they speak not at all to the TTT will vote in the same way.’’ Mobile v. Bolden, 446 U.S. 55, 87, 100 S.Ct. subject of justiciability. And while of 1490, 64 L.Ed.2d 47 (1980) (STEVENS, course a difference exists beStween the 326 J., concurring in judgment). ‘‘In the constitutional interests protected by the line-drawing process, racial, religious, First and Fourteenth Amendments, the ethnic, and economic gerrymanders are relevant lesson of the patronage cases is all species of political gerrymanders.’’ that partisanship is not always as benign a Id., at 88, 100 S.Ct. 1490. Thus, the crit- consideration as the plurality appears to ical issue in both racial and political ger- assume. In any event, as I understand rymandering cases is the same: whether the plurality’s opinion, it seems to agree a single nonneutral criterion controlled that if the State goes ‘‘too far’’—if it en- the districting process to such an extent gages in ‘‘political gerrymandering for pol- that the Constitution was offended. This itics’ sake’’—it violates the Constitution in Court has treated that precise question the same way as if it undertakes ‘‘racial as justiciable in Gomillion and in the gerrymandering for race’s sake.’’ Ibid. Shaw line of cases, and today’s plurality

But that sort of constitutional violation has supplied no persuasive reason S 327for cannot be touched by the courts, the plu- distinguishing the justiciability of partisan rality maintains, because the judicial obli- gerrymanders. Those cases confirm and gation to intervene is ‘‘dubious.’’ Ante, at reinforce the holding that partisan gerry- 1781.14 mandering claims are justiciable.15

12. It goes without saying that a claim that claims will give rise to a flood of litigation. otherwise would trigger strict scrutiny might See ante, at 1781. But the list of cases that it nonetheless be nonjusticiable. See, e.g., Allen cites in its lengthy footnote 6, ante, at 1778, v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 82 suggests that in the two decades since Ban- L.Ed.2d 556 (1984); DeFunis v. Odegaard, demer, there has been an average of just three 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 or four partisan gerrymandering cases filed (1974) (per curiam). every year. That volume is obviously trivial when compared, for example, to the amount 13. The plurality explains that it is willing to of litigation that followed our adoption of the ‘‘accep[t] a modest degree of unmanageabili- ‘‘one-person, one-vote’’ rule. See Reynolds v. ty’’ where the ‘‘constitutional command TTT is Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d clear,’’ but not where the ‘‘constitutional obli- 506 (1964). gation TTT is both dubious and severely un- manageable.’’ Ante, at 1781. Not only does 15. Writing for the Court in Bandemer, Justice this statement cast doubt on the plurality’s White put it well: ‘‘That the characteristics of faith in our racial gerrymandering cases, but its reasoning is clearly tautological. the complaining group are not immutable or that the group has not been subject to the 14. The plurality’s reluctance to recognize the same historical stigma may be relevant to the justiciability of partisan gerrymanders seems manner in which the case is adjudicated, but driven in part by a fear that recognizing such these differences do not justify a refusal to 541 U.S. 328 VIETH v. JUBELIRER 1805 Cite as 124 S.Ct. 1769 (2004)

II plaint in this case alleges injuries of both The plurality opinion in Bandemer dealt types—a group harm to Democratic voters with a claim that the Indiana apportion- throughout Pennsylvania and a more indi- ment scheme for state legislative districts vidualized representational injury to Furey discriminated against Democratic voters as a resident of District 6. on a statewide basis. 478 U.S., at 127, 106 In a challenge to a statewide districting S.Ct. 2797. In my judgment, the Bandem- plan, plaintiffs-appellants complain that er Court was correct to entertain that they have been injured because of their statewide challenge, because the plaintiffs membership in a particular, identifiable in that case alleged a group harm that group. The plaintiffs-appellees in Ban- affected members of their party through- demer, for example, alleged ‘‘that Demo- out the State. In the subsequent line of cratic voters over the State as a whole, not racial gerrymandering cases, however, the Democratic voters in particular districts, Court shifted its focus from statewide chal- ha[d] been subjected to unconstitutional lenges and required, as a matter of stand- discrimination.’’ 478 U.S., at 127, 106 ing, that plaintiffs stating race-based equal protection claims actually reside in the dis- S.Ct. 2797 (citing complaint). They specif- tricts they are challenging. See United ically claimed that they were injured as States v. Hays, 515 U.S. 737, 745, 115 S.Ct. members of a group because the number 2431, 132 L.Ed.2d 635 (1995). Because of Democratic representatives was not Hays has altered the standing rules for commensurate with the number of Demo- gerrymandering claims—and because, in cratic voters throughout Indiana. Much my view, racial and political gerrymanders like the plaintiffs-appellees in Bandemer, are species of the same constitutional con- plaintiffs-appellants in this case allege that cern—the Hays standing rule requires dis- the statewide plan will enable Republicans, missal of the statewide claim.16 But that who constitute about half of Pennsylvania’s does not S 328end the matter. Challenges to voters, to elect 13 or 14 members of the specific districts, such as those considered State’s 19–person congressional delega- in the Shaw cases, relate to a different tion.17 Under Hays, however, plaintiffs- type of ‘‘representational’’ harm, and those appellants lack standing to challenge the allegations necessarily must be considered districting plan on a statewide basis. 515 on a district-by-district basis. The com- U.S., at 744–745, 115 S.Ct. 2431.18

entertain such a case.’’ 478 U.S., at 125, 106 our decision in Shaw I and remain convinced S.Ct. 2797. that it was incorrectly decided, I would give the Shaw cases stare decisis effect in the polit- 16. The cases that the plurality cites today, ical gerrymandering context. Given the ante, at 1778, n. 6, support the conclusion Court’s illogical disposition of this case, how- that it would have been wise to endorse the ever, in future cases I would feel free to views expressed in Justice Powell’s dissent in reexamine the standing issue. I surely would Bandemer, 478 U.S., at 161, 106 S.Ct. 2797, not suggest that a plaintiff would never have and my concurrence in Karcher v. Daggett, standing to litigate a statewide claim. 462 U.S. 725, 744, 103 S.Ct. 2653, 77 L.Ed.2d 17. App. to Juris. Statement 138a. 133 (1983). I remain convinced that our opinions correctly interpreted the law. If that 18. As the Court explained in Hays, ‘‘[v]oters standard were applied to the statewide chal- in [gerrymandered] districts may suffer the lenge in this case, a trial of the entire case special representational harms [that constitu- would be required. For the purpose of decid- tionally suspect] classifications can cause in ing this case, even though I dissented from the voting context. On the other hand, where 1806 124 SUPREME COURT REPORTER 541 U.S. 328

A challenge to a specific district or dis- Undergirding the Shaw cases is the prem- tricts, on the other hand, alleges a differ- ise that racial gerrymanders effect a con- ent type of injury entirely—one that stitutional wrong when they disrupt the

S 329our recent racial gerrymandering cases representational norms that ordinarily have recognized as cognizable.19 In Shaw tether elected officials to their constituen- I we held that ‘‘a plaintiff challenging a re- cies as a whole. apportionment statute under the Equal ‘‘[L]egislatures,’’ we have explained, Protection Clause may state a claim by al- ‘‘should be bodies which are collectively leging that the legislation, though race responsive to the popular will,’’ Reynolds, neutral on its face, rationally cannot be un- 377 U.S., at 565, 84 S.Ct. 1362, for ‘‘[l]egis- derstood as anything other than an effort lators are elected by voters, S not farms to separate voters into different districts 330 or cities or economic interests,’’ id., at 562, on the basis of race.’’ 509 U.S., at 649, 113 84 S.Ct. 1362.20 Gerrymanders subvert S.Ct. 2816. After describing the perni- that representative norm because the win- cious consequences of race-conscious dis- ner of an election in a gerrymandered tricting—even when designed to enhance district inevitably will infer that her suc- the representation of the minority—and cess is primarily attributable to the archi- after explaining why dramatically irregu- tect of the district rather than to a constit- lar shapes ‘‘ ‘have sufficient probative uency defined by neutral principles. The force to call for an explanation,’ ’’ id., at Shaw cases hold that this disruption of the 647, 113 S.Ct. 2816 (quoting Karcher v. representative process imposes a cogniza- Daggett, 462 U.S. 725, 755, 103 S.Ct. 2653, ble ‘‘representational har[m].’’ Hays, 515 77 L.Ed.2d 133 (1983) (STEVENS, J., con- U.S., at 745, 115 S.Ct. 2431. Because that curring)), we described the message a mis- harm falls squarely on the voters in the shapen district sends to elected officials: district whose representative might or ‘‘When a district obviously is created does misperceive the object of her fealty, solely to effectuate the perceived com- the injury is cognizable only when stated mon interests of one racial group, elect- by voters who reside in that particular ed officials are more likely to believe district, see Shaw II, 517 U.S., at 904, 116 that their primary obligation is to repre- S.Ct. 1894; otherwise the ‘‘plaintiff would sent only the members of that group, be asserting only a generalized grievance rather than their constituency as a against governmental conduct of which he whole. This is altogether antithetical to or she does not approve,’’ Hays, 515 U.S., our system of representative democra- at 745, 115 S.Ct. 2431. See also Bush v. cy.’’ Shaw I, 509 U.S., at 648, 113 S.Ct. Vera, 517 U.S., at 957–958, 116 S.Ct. 1941 2816. (plurality opinion).

a plaintiff does not live in such a district, he 20. Cf. McConnell v. Federal Election Comm’n, or she does not suffer those special harms 540 U.S. 93, 153, 124 S.Ct. 619, 666, 157 TTTT’’ 515 U.S., at 745, 115 S.Ct. 2431. L.Ed.2d 491 (2003) (‘‘Just as troubling to a functioning democracy as classic quid pro quo 19. The plurality in Bandemer, 478 U.S., at corruption is the danger that officeholders 127, 106 S.Ct. 2797, itself acknowledged that will decide issues not on the merits or the ‘‘the focus of the equal protection inquiry’’ in desires of their constituencies, but according a statewide challenge ‘‘is necessarily some- to the wishes of those who have made large what different from that involved in the re- financial contributions valued by the office- view of individual districts.’’ holder’’). 541 U.S. 331 VIETH v. JUBELIRER 1807 Cite as 124 S.Ct. 1769 (2004)

Although the complaint in this case in- ble in the context of racial gerrymander- cludes a statewide challenge, plaintiff-ap- ing. The same treatment is warranted in pellant Furey states a stronger claim as a this case. 21 resident of the misshapen District 6. She The risk of representational harms iden- complains not merely about the injury re- tified in the Shaw cases is equally great, if sulting from the probable election of a not greater, in the context of partisan ger- congressional delegation that does not fair- rymanders. Shaw I was borne of the con- ly repreSsent331 the entire State, or about cern that an official elected from a racially the harm flowing from the probable elec- gerrymandered district will feel beholden tion of a Republican to represent District only to a portion of her constituents, and 6.22 She also alleges that the grotesque that those constituents will be defined by configuration of that district itself imposes race. 509 U.S., at 648, 113 S.Ct. 2816. a special harm on the members of the The parallel danger of a partisan gerry- political minority residing in District 6 that mander is that the representative will per- directly parallels the harm recognized in ceive that the people who put her in power Shaw I. Officials elected by the majority are those who drew the map rather than party in such a district, she claims, ‘‘are those who cast ballots, and she will feel more likely to believe that their primary beholden not to a subset of her constituen- obligation is to represent only the mem- cy, but to no part of her constituency at bers of that group, rather than the constit- all.24 The problem, simply put, is that the uency as a whole.’’ 23 This is precisely the will of the cartographers rather than the harm that the Shaw cases treat as cogniza- will of the people will govern.25 As Judge

21. Plaintiffs-appellants Richard and Norma of Parliament were elected from geographic Jean Vieth are registered Democrats who re- units that remained unchanged despite popu- side in District 16. App. to Juris. Statement lation changes wrought by the Industrial Rev- 129a. The complaint does not claim that they olution. ‘‘Because representation was not resided in a different district under the old based on population, vast inequities devel- districting scheme, nor does it anywhere al- oped over time in the form of the so-called lege, as it does on Furey’s behalf, that District rotten boroughs. Old Sarum, for instance, 16 in particular is irregularly shaped. A had no human residents—only a few sheep— glance at the appended map, infra, reveals yet sent the same number of representatives that District 16 is not especially unusual in its to Parliament as Yorkshire, with nearly a mil- contours. Without more specific allegations lion inhabitants.’’ R. Zagarri, The Politics of regarding District 16, I would limit the analy- Size: Representation in the United States, sis to District 6. 1776–1850, p. 37 (1987). As a result of this system, ‘‘many insignificant places returned 22. When her residence was located in District members, while many important towns did 13, Furey was represented by a Democrat. not,’’ and ‘‘even in large towns the members were often elected by a tiny fraction of the App. 261. population.’’ J. Butler, The Passing of the Great Reform Bill 176 (1914). Meanwhile, 23. App. to Juris. Statement 142a. ‘‘[t]he Government bribed the patron or mem- ber or both by means of distinctions and 24. ‘‘[A]mple evidence demonstrates that many offices or by actual cash,’’ and ‘‘[t]he patron of today’s congressional representatives owe and member bribed the electors in the same their election not to ‘the People of the several way.’’ Ibid. The rotten boroughs clearly states’ but to the mercy of state legislatures.’’ would violate our familiar one-person, one- Note, 117 Harv. L.Rev. 1196, 1202 (2004). vote rule, but they were also troubling be- cause the representative of such a borough 25. In this sense the partisan gerrymander is owed his primary loyalty to his patron and the American cousin of the English ‘‘rotten the government rather than to his constitu- borough.’’ In the English system, Members ents (if he had any). Similarly, in gerryman- 1808 124 SUPREME COURT REPORTER 541 U.S. 332

S 332Ward recently wrote, ‘‘extreme partisan whether the minority is defined by its gerrymandering leads to a system in which members’ race, religion, or political affilia- the representatives choose their constitu- tion—they must rest on a neutral predi- ents, rather than vice-versa.’’ Session v. cate. See Hampton v. Mow Sun Wong, Perry, 298 F.Supp.2d 451, 516 (E.D.Tex. 426 U.S. 88, 100, 96 S.Ct. 1895, 48 L.Ed.2d 2004) (per curiam) (concurring in part and 495 (1976) (‘‘The federal sovereign, like the dissenting in part). States, must govern impartially’’); Ban- demer, 478 U.S., at 166, 106 S.Ct. 2797 III (Powell, J., dissenting). The Constitution Elected officials in some sense serve two enforces ‘‘a commitment to the law’s neu- masters: the constituents who elected trality where the rights of persons are at them and the political sponsors who sup- stake.’’ Romer, 517 U.S., at 623, 116 S.Ct. port them. Their primary obligations are, 1620. See also Board of Trustees of Univ. of course, to the public in general, but it is of Ala. v. Garrett, 531 U.S. 356, 375, 121 neither realistic nor fair to expect them S.Ct. 955, 148 L.Ed.2d 866 (2001) (KEN- wholly to ignore the political consequences NEDY, J., concurring) (‘‘States act as neu- of their decisions. ‘‘It would be idle TTT to tral entities, ready to take instruction and contend that any political consideration to enact laws when their citizens so de- taken into account in fashioning a reappor- mand’’). Thus, the Equal Protection tionment plan is sufficient to invalidate it.’’ Clause implements a duty to govern im- Gaffney, 412 U.S., at 752, 93 S.Ct. 2321. partially that requires, at the very least, Political factors are common and permissi- that every decision by the sovereign serve 26 ble elements of the art of governing a some nonpartisan public purpose. democratic society. In evaluating a claim that a governmen- But while political considerations may tal decision violates the Equal Protection properly influence the decisions of our Clause, we have long required a showing elected officials, when such decisions disSad- of discriminatory purpose. See Washing- vantage333 members of a minority group— ton v. Davis, S 334426 U.S. 229, 96 S.Ct.

dered districts, instead of local groups defined designed to guarantee that Executive Branch by neutral criteria selecting their representa- employees neutrally carry out their duties. tives, it is the architects of the districts who See Ex parte Curtis, 106 U.S. 371, 372–373, 1 select the constituencies and, in effect, the S.Ct. 381, 27 L.Ed. 232 (1882). Some of representatives. those laws avoided the danger that ‘‘the gov- ernment itself may be made to furnish indi- 26. In the realm of federal elections, the re- rectly the money to defray the expenses of quirement of governmental neutrality is but- keeping the political party in power that hap- tressed by this Court’s recognition that the pens to have for the time being the control of Elections Clause is not ‘‘ ‘a source of power to the public patronage.’’ Id., at 375, 1 S.Ct. dictate electoral outcomes, to favor or disfa- 381. It is ‘‘fundamental’’ that federal employ- vor a class of candidates, or to evade impor- ees ‘‘are expected to enforce the law and tant constitutional restraints.’ ’’ Cook v. Gra- execute the programs of the Government like, 531 U.S. 510, 523, 121 S.Ct. 1029, 149 without bias or favoritism for or against any L.Ed.2d 44 (2001) (quoting U.S. Term Limits, political party or group or the members there- Inc. v. Thornton, 514 U.S. 779, 833–834, 115 of.’’ Civil Service Comm’n v. Letter Carriers, S.Ct. 1842, 131 L.Ed.2d 881 (1995)). And 413 U.S. 548, 564–565, 93 S.Ct. 2880, 37 this duty to govern impartially extends to ex- L.Ed.2d 796 (1973). That expectation reflects ecutive and legislative officials alike. Begin- the principle that ‘‘the impartial execution of ning as early as its first session in 1789, the laws’’ is a ‘‘great end of Government.’’ Congress has passed a number of statutes Id., at 565, 93 S.Ct. 2880. 541 U.S. 335 VIETH v. JUBELIRER 1809 Cite as 124 S.Ct. 1769 (2004)

2040, 48 L.Ed.2d 597 (1976).27 That re- dominant and controlling rationale in quirement applies with full force to dis- drawing its district lines.’’ 515 U.S., at tricting decisions. The line that divides a S 335913, 115 S.Ct. 2475. Under the Shaw racial or ethnic minority unevenly between cases, then, the use of race as a criterion in school districts can be entirely legitimate if redistricting is not per se impermissible, chosen on the basis of neutral factors— see Shaw I, 509 U.S., at 642, 113 S.Ct. county lines, for example, or a natural 2816; Shaw II, 517 U.S. 899, 116 S.Ct. boundary such as a river or major thor- 1894, 135 L.Ed.2d 207, but when race is oughfare. But if the district lines were elevated to paramount status—when it is chosen for the purpose of limiting the the be-all and end-all of the redistricting number of minority students in the school, process—the legislature has gone too far. or the number of families holding unpopu- ‘‘Race must not simply have been a moti- lar religious or political views, that invidi- vation TTT but the predominant factor mo- ous purpose surely would invalidate the tivating the legislature’s districting deci- district. See Gomillion v. Lightfoot, 364 sion.’’ Easley, 532 U.S., at 241, 121 S.Ct. U.S., at 344–345, 81 S.Ct. 125; cf. Board 1452 (internal quotation marks and cita- of Ed. of Kiryas Joel Village School Dist. tions omitted). v. Grumet, 512 U.S. 687, 699–700, 114 S.Ct. Just as irrational shape can serve as 2481, 129 L.Ed.2d 546 (1994). an objective indicator of an impermissi- Consistent with that principle, our re- ble legislative purpose, other objective cent racial gerrymandering cases have ex- features of a districting map can save amined the shape of the district and the the plan from invalidation. We have purpose of the districting body to deter- explained that ‘‘traditional districting mine whether race, above all other criteria, principles,’’ which include ‘‘compactness, predominated in the line-drawing process. contiguity, and respect for political sub- We began by holding in Shaw I that a divisions,’’ are ‘‘important not because districting scheme could be ‘‘so irrational they are constitutionally required TTT on its face that it [could] be understood but because they are objective factors only as an effort to segregate voters into that may serve to defeat a claim that a separate voting districts because of their district has been gerrymandered on ra- race.’’ 509 U.S., at 658, 113 S.Ct. 2816. cial lines.’’ Shaw I, 509 U.S., at 647, Then, in Miller, we explained that Shaw 113 S.Ct. 2816 (citing Gaffney, 412 U.S., I’s irrational-shape test did not treat the at 752, n. 18, 93 S.Ct. 2321; Karcher, bizarreness of a district’s lines itself as a 462 U.S., at 755, 103 S.Ct. 2653 (STE- constitutional violation; rather, the irregu- VENS, J., concurring)). ‘‘Where these larity of the district’s contours in Shaw I or other race-neutral considerations are was ‘‘persuasive circumstantial evidence the basis for redistricting legislation, that race for its own sake, and not other and are not subordinated to race, a districting principles, was the legislature’s State can ‘defeat a claim that a district

27. In Washington v. Davis, we referred to an L.Ed.2d 512 (1964)). We emphasized that the earlier challenge to a New York reapportion- Court in Wright had been unanimous in iden- ment statute that had failed because the plain- tifying the issue as ‘‘whether the ‘boundaries tiffs had not shown that the statute was ‘‘ ‘the TTT were purposefully drawn on racial product of a state contrivance to segregate on lines.’ ’’ 426 U.S., at 240, 96 S.Ct. 2040 the basis of race or place of origin.’ ’’ 426 (quoting Wright, 376 U.S., at 67, 84 S.Ct. U.S., at 240, 96 S.Ct. 2040 (quoting Wright v. 603). Rockefeller, 376 U.S. 52, 58, 84 S.Ct. 603, 11 1810 124 SUPREME COURT REPORTER 541 U.S. 335

has been gerrymandered on racial S.Ct. 2797; Cousins v. City Council of lines.’ ’’ Miller, 515 U.S., at 916, 115 Chicago, 466 F.2d 830, 853 (C.A.7 1972) S.Ct. 2475 (quoting Shaw I, 509 U.S., at (STEVENS, J., dissenting). 647, 113 S.Ct. 2816). The racial gerrymandering cases there- In my view, the same standards should fore supply a judicially manageable stan- apply to claims of political gerrymander- dard for determining when partisanship, ing, for the essence of a gerrymander is like race, has played too great of a role in the same regardless of whether the group the districting process. Just as race can is identified as political or racial. Gerry- be a factor in, but cannot dictate the out- mandering always involves the drawing of come of, the districting process, so too can district boundaries to maximize the voting partisanship be a permissible consideration strength of the dominant political faction in drawing district lines, so long as it does and to minimize the strength of one or not predominate. If, as plaintiff-appellant more groups of opponents. Mobile, 446 Furey has alleged, the predominant motive U.S., at 87, 100 S.Ct. 1490 (STEVENS, J., of the legislators who designed District 6, concurring in judgment). In seeking the and the sole justification for its bizarre desired result, legislators necessarily make shape, was a purpose to discriminate judgments about the probability that the against a political minority, that invidious members of identifiable S groups—wheth- 336 purpose should invalidate the district. er economic, religious, ethnic, or racial— will vote in a certain way. The overriding The plurality reasons that the standards purpose of those predictions is political. for evaluating racial gerrymanders are not See Karcher, 462 U.S., at 749–750, 103 workable in cases such as this because S.Ct. 2653 (STEVENS, J., concurring); partisan considerations, unlike racial ones, Mobile, 446 U.S., at 88, 100 S.Ct. 1490 are perfectly legitimate. Ante, at 1781. (STEVENS, J., concurring in judgment).28 Until today, however, there has not been It follows that the standards that enable the slightest intimation in any opinion courts to identify and redress a racial ger- written by any Member of this Court that

rymander could also perform the same a naked purpose S 337to disadvantage a polit- function for other species of gerryman- ical minority would provide a rational basis ders. See Bandemer, 478 U.S., at 125, 106 for drawing a district line.29 On the con-

28. I have elsewhere explained my view that ed to suggest that the vintage of an invidious race as a factor in the districting process is no practice—even ‘‘an American political tradi- different from any other political consider- tion as old as the Republic,’’ Board of ation. Creating a majority-minority district is Comm’rs, Wabaunsee Cty. v. Umbehr, 518 U.S. no better and no worse than creating an 668, 688, 116 S.Ct. 2342, 135 L.Ed.2d 843 Irish–American, or Polish–American, or Ital- (1996) (SCALIA, J., dissenting)—should insu- ian–American district. In all events the rele- late it from constitutional review. Compare, vant question is whether the sovereign abro- e.g., Bradwell v. State, 16 Wall. 130, 21 L.Ed. gated its obligation to govern neutrally. See 442 (1873), with Nevada Dept. of Human Re- Karcher, 462 U.S., at 753–754, 103 S.Ct. 2653 sources v. Hibbs, 538 U.S. 721, 729, 123 S.Ct. (STEVENS, J., concurring); Mobile, 446 U.S., 1972, 155 L.Ed.2d 953 (2003). The historical at 88, 100 S.Ct. 1490 (STEVENS, J., concur- discussion might be relevant if it attempted to ring in judgment); Cousins v. City Council of justify political gerrymandering as an accept- Chicago, 466 F.2d 830, 850–853 (C.A.7 1972) able use of governmental power. In the end, (STEVENS, J., dissenting). however, the plurality’s defense of its position comes down to the unconvincing assertion 29. The plurality’s long discussion of the histo- that it lacks the juridical capacity to adminis- ry of political gerrymanders is interesting, ter the standards the Court fashioned in its ante, at 1774–1776, but it surely is not intend- recent racial gerrymandering jurisprudence. 541 U.S. 338 VIETH v. JUBELIRER 1811 Cite as 124 S.Ct. 1769 (2004) trary, our opinions referring to political The Constitution does not, of course, gerrymanders have consistently assumed require proportional representation of ra- that they were at least undesirable, and we cial, ethnic, or political groups. In that I always have indicated that political consid- agree with the plurality. Ante, at 1782. erations are among those factors that may We have held, however, that proportional not dominate districting decisions.30 Pure- representation of political groups is a per- ly partisan motives are ‘‘rational’’ in a lit- missible objective, Gaffney, 412 U.S., at eral sense, but there must be a limiting principle. ‘‘[T]he word ‘rational’—for me 754, 93 S.Ct. 2321, and some of us have at least—includes elements of legitimacy expressed the opinion that a majority’s and neutrality that must always character- decision to enhance the representation of a ize the performance of the sovereign’s duty racial minority is equally permissible, par- to govern impartially.’’ Cleburne v. Cle- ticularly when the decision is designed to burne Living Center, Inc., 473 U.S. 432, comply with the Voting Rights Act of 452, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) 1965.31 Thus, the view that the plurality (STEVENS, J., concurring). A legislature implicitly embraces today—that a gerry- controlled by one party could not, for in- mander contrived for the sole purpose of stance, impose special taxes on members disadvantaging a political minority is less of the minority party, or use tax revenues objectionable than one seeking to benefit a to pay the majority party’s campaign ex- penses. The rational basis for government racial minority—is doubly flawed. It dis- decisions must satisfy a standard of legiti- regards the obvious distinction between an invidious and a benign purpose, and it macy and S 338neutrality; an acceptable ra- tional basis can be neither purely personal mistakenly assumes that race cannot pro- nor purely partisan. See id., at 452–453, vide a legitimate basis for making political 105 S.Ct. 3249. judgments.32

30. Bandemer, 478 U.S. 109, 106 S.Ct. 2797, 32. Because race so seldom provides a ration- 92 L.Ed.2d 85 (plurality opinion); Gaffney v. al basis for a governmental decision, racial Cummings, 412 U.S. 735, 754, 93 S.Ct. 2321, classifications almost always fail to survive 37 L.Ed.2d 298 (1973); Whitcomb v. Chavis, ‘‘rational basis’’ scrutiny. But ‘‘[n]ot every 403 U.S. 124, 143, 91 S.Ct. 1858, 29 L.Ed.2d decision influenced by race is equally objec- 363 (1971); Burns v. Richardson, 384 U.S. 73, tionable.’’ Grutter v. Bollinger, 539 U.S. 306, 88, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966); 327, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003). Fortson v. Dorsey, 379 U.S. 433, 439, 85 S.Ct. When race is used as the basis for making 498, 13 L.Ed.2d 401 (1965). Consistent with predictive political judgments, it may be as these statements, the District Court in a re- reliable (or unreliable) as other group charac- cent case correctly described political gerry- teristics, such as political affiliation, econom- mandering as ‘‘a purely partisan exercise’’ ic status, or national origin. The fact that and ‘‘an abuse of power that, at its core, race is an immutable characteristic does not evinces a fundamental distrust of voters, serv- mean that there is anything immutable or ing the self-interest of the political parties at certain about the political behavior of the the expense of the public good.’’ App. to members of any racial class. See Mobile v. Juris. Statement in Balderas v. Texas, O.T. Bolden, 446 U.S. 55, 88, 100 S.Ct. 1490, 64 2001, No. 01–1196, p. 10. L.Ed.2d 47 (1980) (STEVENS, J., concurring in judgment). Registered Republicans of all races sometimes vote for Democratic candi- 31. See Shaw II, 517 U.S., at 918, 116 S.Ct. dates, and vice versa. 1894 (STEVENS, J., dissenting); Bush v. Vera, 517 U.S., at 1033–1034, 116 S.Ct. 1941 The plurality asserts that a person’s politics, (STEVENS, J., dissenting); Miller, 515 U.S., unlike her race, is not readily ‘‘discernible.’’ at 947–948, 115 S.Ct. 2475 (GINSBURG, J., Ante, at 1782. But that assertion is belied by dissenting). the evidence that the architects of political 1812 124 SUPREME COURT REPORTER 541 U.S. 339

S 339In sum, in evaluating a challenge to a IV specific district, I would apply the stan- Plaintiff-appellant Furey plainly has dard set forth in the Shaw cases and ask stated a claim that District 6 constitutes whether the legislature allowed partisan an unconstitutional partisan gerrymander. considerations to dominate and control the According to the complaint, Pennsylva- lines drawn, forsaking all neutral princi- nia’s 2002 redistricting plan splits ‘‘Mont- ples.33 Under my analysis, if no neutral gomery County alone TTT into six S different congressional districts.’’ 35 criterion can be identified to justify the 340 The new District 6 ‘‘looms like a dragon lines drawn, and if the only possible expla- descending on Philadelphia from the west, nation for a district’s bizarre shape is a splitting up towns and communities naked desire to increase partisan strength, throughout Montgomery and Berks Coun- then no rational basis exists to save the ties.’’ 36 Furey alleges that the districting district from an equal protection challenge. plan was created ‘‘solely to effectuate the Such a narrow test would cover only a few interests’’ of Republicans,37 and that the meritorious claims, but it would preclude General Assembly relied ‘‘exclusively on a extreme abuses, such as those disclosed by principle of maximum partisan advantage’’ 38 the record in Badham v. Eu, 694 F.Supp. when drawing the plan, ‘‘to the exclusion 39 664 (N.D.Cal.1988), summarily aff’d, 488 of all other criteria.’’ The 2002 plan ‘‘is so irregular on its face that it rationally U.S. 1024, 109 S.Ct. 829, 102 L.Ed.2d 962 can be viewed only as an effort TTT to (1989),34 and it would perhaps shorten the advance the interests of one political par- time period in which the pernicious effects ty, without regard for traditional redis- of such a gerrymander are felt. This test tricting principles and without any legiti- would mitigate the current trend under mate or compelling justification.’’ 40 ‘‘The which partisan considerations are becom- problem,’’ Furey claims, is that the legis- ing the be-all and end-all in apportioning lature ‘‘subordinated—indeed ignored—all representatives. traditional redistricting principles and all

gerrymanders seem to have no difficulty in tricts with highly irregular shapes, all de- discerning the voters’ political affiliation. Af- signed, the plaintiffs-appellants alleged, to di- ter all, eligibility to vote in primary elections lute Republican voting strength throughout often requires the citizen to register her party the State. See Juris. Statement in Badham affiliation, but it never requires her to register v. Eu, O.T.1987, No. 87–1818, Exh. D, p. 77a. her race. Three Members of this Court dissented from the summary affirmance in Badham and 33. The one-person, one-vote rule obviously would have noted probable jurisdiction. 488 constitutes a neutral districting criterion, but U.S. 1024, 109 S.Ct. 829, 102 L.Ed.2d 962 our gerrymandering cases have never cited (1989). that principle as one of the traditional criteria ‘‘that may serve to defeat a claim that a 35. App. to Juris. Statement 135a. district has been gerrymandered on racial lines.’’ Shaw I, 509 U.S., at 647, 113 S.Ct. 36. Id., at 136a. 2816. Thus, I would require that a district be justified with reference to both the one-per- son, one-vote rule and some other neutral 37. Id., at 142a. criterion. See Bandemer, 478 U.S., at 162, 168, 106 S.Ct. 2797 (Powell, J., concurring in 38. Id., at 143a. part and dissenting in part). 39. Id., at 140a. 34. The California districting scheme at issue in Badham featured a large number of dis- 40. Id., at 143a. 541 U.S. 341 VIETH v. JUBELIRER 1813 Cite as 124 S.Ct. 1769 (2004) legitimate bases for governmental deci- rather that the Judiciary lacks the ability sionmaking, in order to favor those with to determine when a state legislature has one political viewpoint over another.’’ 41 violated its duty to govern impartially. The plan ‘‘ignores all other traditional re- Quite obviously, however, several stan- districting criteria,’’ she alleges, ‘‘thus dards for identifying impermissible parti- demonstrating that partisanship—and san influence are available to judges who nothing else—was the rationale behind have the will to enforce them. We could 42 the plan.’’ Because this complaint hold that every district boundary must states a claim under a judicially managea- have a neutral justification; we could ap- ble standard for adjudicating partisan ger- ply Justice Powell’s three-factor approach rymandering cases, I would reverse the in Bandemer; we could apply the predomi- judgment of the District Court and re- nant motivation standard fashioned by the mand for further proceedings consistent Court in its racial gerrymandering cases; with this opinion. or we could endorse either of the ap- proaches advocated today by Justice The plurality candidly acknowledges SOUTER and Justice BREYER. What is that legislatures can fashion standards to clear is that it is not the unavailability of remedy political gerrymandering that are judicially manageable standards that perfectly manageable and, indeed, that the drives today’s decision. It is, instead, a legislatures in Iowa and elsewhere have failure of judicial will to condemn even the done so. Ante, at 1776, n. 4. If S 341a most blatant violations of a state legisla- violation of the Constitution is found, a ture’s fundamental duty to govern impar- court could impose a remedy patterned tially. after such a statute. Thus, the problem, in Accordingly, I respectfully dissent. the plurality’s view, is not that there is no judicially manageable standard to fix an [Appendix to opinion of STEVENS, J., unconstitutional partisan gerrymander, but follows this page.]

41. Ibid. 42. Id., at 135a. 1814 124 SUPREME COURT REPORTER 541 U.S. 342

S 342APPENDIX 541 U.S. 344 VIETH v. JUBELIRER 1815 Cite as 124 S.Ct. 1769 (2004)

‘fair and effective representation,’ ’’ id., at Justice SOUTER, with whom Justice 162, 106 S.Ct. 2797 (Powell, J., concurring GINSBURG joins, dissenting. in part and dissenting in part). Cf. Wells

S 343The Constitution guarantees both for- v. Rockefeller, 394 U.S. 542, 551, 89 S.Ct. mal and substantial equality among voters. 1234, 22 L.Ed.2d 535 (1969) (Harlan, J., For 40 years, we have recognized that dissenting) (describing the need for ‘‘a lines dividing a State into voting districts structure which will in fact as well as must produce divisions with equal popula- theory be responsive to the sentiments of tions: one person, one vote. Reynolds v. the community’’). It is undeniable that Sims, 377 U.S. 533, 568, 84 S.Ct. 1362, 12 political sophisticates understand such

L.Ed.2d 506 (1964). Otherwise, a vote in a S 344fairness and how to go about destroying less populous district than others carries it, see App. to Juris. Statement 134a, more clout. although it cannot possibly be described with the hard edge of one person, one vote. Creating unequally populous districts is The difficulty has been to translate these not, however, the only way to skew politi- notions of fairness into workable criteria, cal results by setting district lines. The as distinct from mere opportunities for choice to draw a district line one way, not reviewing courts to make episodic judg- another, always carries some consequence ments that things have gone too far, the for politics, save in a mythical State with sources of difficulty being in the facts that voters of every political identity distribut- some intent to gain political advantage is ed in an absolutely gray uniformity. The inescapable whenever political bodies de- spectrum of opportunity runs from crack- vise a district plan, and some effect results ing a group into impotent fractions, to from the intent. Wells, supra, at 554–555, packing its members into one district for 89 S.Ct. 1234 (White, J., dissenting) (‘‘In the sake of marginalizing them in another. reality, of course, districting is itself a However equal districts may be in popula- gerrymandering in the sense that it repre- tion as a formal matter, the consequence of sents a complex blend of political, econom- a vote cast can be minimized or maxim- ic, regional, and historical considerations’’). ized, Karcher v. Daggett, 462 U.S. 725, 734, Thus, the issue is one of how much is too n. 6, 103 S.Ct. 2653, 77 L.Ed.2d 133 (1983), much, and we can be no more exact in and if unfairness is sufficiently demonstra- stating a verbal test for too much partisan- ble, the guarantee of equal protection con- ship than we can be in defining too much demns it as a denial of substantial equality. race consciousness when some is inevitable Davis v. Bandemer, 478 U.S. 109, 129–134, and legitimate. See Bush v. Vera, 517 106 S.Ct. 2797, 92 L.Ed.2d 85 (1986) (plu- U.S. 952, 1057–1062, 116 S.Ct. 1941, 135 rality opinion). L.Ed.2d 248 (1996) (SOUTER, J., dissent- ing). Instead of coming up with a verbal I formula for too much, then, the Court’s job must be to identify clues, as objective as The notion of fairness assumed to be we can make them, indicating that partisan denied in these cases has been described competition has reached an extremity of as ‘‘each political group in a State [having] unfairness. the same chance to elect representatives of its choice as any other political group,’’ id., The plurality says, in effect, that courts at 124, 106 S.Ct. 2797, and as a ‘‘right to have been trying to devise practical crite- 1816 124 SUPREME COURT REPORTER 541 U.S. 344

ria for political gerrymandering for nearly supra, at 173, 106 S.Ct. 2797 (Powell, J., 20 years, without being any closer to some- concurring in part and dissenting in part)). thing workable than we were when Davis II was decided. Ante, at 1778.1 While this is true enough, I do not accept it as sound Since this Court has created the prob- counsel of despair. For I take it that the lem no one else has been able to solve, it is principal reason we have not gone from up to us to make a fresh start. There are a good many voices saying it is high time theoretical justiciability to practical admin- that we did, for in the years since Davis, istrability in political gerrymandering the increasing efficiency of partisan redis- cases is the Davis plurality’s specification tricting has damaged the democratic pro- that any criterion of forbidden gerryman- cess to a degree that our predecessors dering must require a showing that mem- only began to imagine. E.g., Issacharoff, bers of the plaintiff’s group had ‘‘essential- Gerrymandering and Political Cartels, 116 ly been shut out of the political process,’’ Harv. L.Rev. 593, 624 (2002) (The ‘‘pattern 478 U.S., at 139, 106 S.Ct. 2797. See, e.g., of incumbent entrenchment has gotten Badham v. Eu, 694 S 345F.Supp. 664, 670– worse as the computer technology for 671 (N.D.Cal.1988) (three-judge court). more exquisite gerrymandering has im- That is, in order to avoid a threshold for proved’’); Karlan, The Fire Next Time: relief so low that almost any electoral de- Reapportionment After the 2000 Census, feat (let alone failure to achieve propor- 50 Stan. L.Rev. 731, 736 (1998) (‘‘Finer- tionate results) would support a gerryman- grained census data, better predictive dering claim, the Davis plurality required methods, and more powerful computers a demonstration of such pervasive devalua- allow for increasingly sophisticated equipo- tion over such a period of time as to raise pulous gerrymanSders’’);346 Pildes, Princi- real doubt that a case could ever be made pled Limitations on Racial and Partisan out. Davis suggested that plaintiffs might Redistricting, 106 Yale L.J. 2505, 2553– need to show even that their efforts to 2554 (1997) (‘‘Recent cases now document in microscopic detail the astonishing preci- deliberate, register, and vote had been im- sion with which redistricters can carve up peded. 478 U.S., at 133, 106 S.Ct. 2797. individual precincts and distribute them This standard, which it is difficult to imag- between districts with confidence concern- ine a major party meeting, combined a ing the racial and partisan consequences’’). very demanding burden with significant See also Morrill, A Geographer’s Perspec- vagueness; and if appellants have not been tive, in Political Gerrymandering and the able to propose a practical test for a Davis Courts 213–214 (B. Grofman ed.1990) (not- violation, the fault belongs less to them ing that gerrymandering can produce than to our predecessors. As Judge ‘‘high proportions of very safe seats’’); Higginbotham recently put it, ‘‘[i]t is now Brief for Bernard Grofman et al. as Amici painfully clear that Justice Powell’s con- Curiae 5–8 (decline of competitive seats). cern that [Davis] offered a ‘ ‘‘constitutional Cf. Wells, 394 U.S., at 551, 89 S.Ct. 1234 green light’’ to would-be gerrymanderers’ (Harlan, J., dissenting) (‘‘A computer may has been realized.’’ Session v. Perry, 298 grind out district lines which can totally F.Supp.2d 451, 474 (E.D.Tex.2004) (per cu- frustrate the popular will on an over- riam) (footnote omitted) (quoting Davis, whelming number of critical issues’’).

1. And the plurality says the dissenters labor Justice BREYER’s response, post, at 1829. still in vain today, ante, at 1784; I join in 541 U.S. 348 VIETH v. JUBELIRER 1817 Cite as 124 S.Ct. 1769 (2004)

I would therefore preserve Davis’s hold- III ing that political gerrymandering is a justi- ciable issue, but otherwise start anew. I A would adopt a political gerrymandering For a claim based on a specific single- test analogous to the summary judgment member district, I would require the plain- standard crafted in McDonnell Douglas tiff to make out a prima facie case with Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, five elements. First, the resident plaintiff 36 L.Ed.2d 668 (1973), calling for a plain- would identify a cohesive political group to tiff to satisfy elements of a prima facie which he belonged, which would normally cause of action, at which point the State be a major party, as in this case and in would have the opportunity not only to Davis. There is no reason in principle, rebut the evidence supporting the plain- however, to rule out a claimant from a tiff’s case, but to offer an affirmative justi- minor political party (which might, if it fication for the districting choices, even showed strength, become the target of vig- assuming the proof of the plaintiff’s allega- orous hostility from one or both major tions. My own judgment is that we would parties in a State) or from a different but have better luck at devising a workable politically coherent group whose members prima facie case if we concentrated as engaged in bloc voting, as a large labor much as possible on suspect characteristics union might do. The point is that it must of individual districts instead of statewide make sense to speak of a candidate of the patterns. It is not that a statewide view of group’s choice, easy to do in the case of a districting is somehow less important; the large or small political party, though more usual point of gerrymandering, after all, is difficult when the organization is not de- 2 to control the greatest number of seats fined by politics as such. overall. But, as will be seen, we would be Second, a plaintiff would need to show able to call more readily on some existing that the district of his residence, see Unit- law when we defined what is suspect at the ed States v. Hays, 515 U.S. 737, 115 S.Ct. district level, and for now I would conceive 2431, 132 L.Ed.2d 635 (1995) (requiring of a statewide challenge as itself a function residence in a challenged district for of claims that individual districts are ille- standing), S 348paid little or no heed to those gitimately drawn. Finally, in the same traditional districting principles whose dis- interest of threshold simplicity, I would regard can be shown straightforwardly: stick to probSlems347 of single-member dis- contiguity, compactness, respect for politi- tricts; if we could not devise a workable cal subdivisions, and conformity with geo- scheme for dealing with claims about graphic features like rivers and mountains. these, we would have to forget the compli- Because such considerations are already cations posed by multimember districts. relevant to justifying small deviations from

2. The plurality says it would not be easy to out what was going on. In major-party cases define such a group, because ‘‘a person’s poli- I do not see any problem with permitting a tics is rarely as readily discernible—and never plaintiff to allege that he is a registered Re- as permanently discernible—as a person’s publican, for example, and that the state legis- race,’’ ante, at 1782. But anytime political lature set out through gerrymandering to gerrymandering has been shown to occur, minimize the number of Republicans elected. evidence must at least imply that the defen- If references to registration will not serve, a dants themselves sat down, identified the rele- plaintiff will need to show the criteria for vant groups, and set out to concentrate the vote of one and dilute that of the others. If a partisan affiliation employed by the defen- plaintiff has the evidence, a court can figure dants in the challenged districting process. 1818 124 SUPREME COURT REPORTER 541 U.S. 348

absolute population equality, Karcher, 462 trict’s deviations from traditional district- U.S., at 740, 103 S.Ct. 2653, and because ing principles and the distribution of the compactness in particular is relevant to population of his group. For example, one demonstrating possible majority-minority of the districts to which appellants object districts under the Voting Rights Act of most strongly in this case is District 6, 1965, Johnson v. De Grandy, 512 U.S. 997, which they say ‘‘looms like a dragon de- 1008, 114 S.Ct. 2647, 129 L.Ed.2d 775 scending on Philadelphia from the west, (1994), there is no doubt that a test relying splitting up towns and communities on these standards would fall within judi- throughout Montgomery and Berks Coun- cial competence. ties.’’ App. to Juris. Statement 136a. To make their claim stick, they would need to Indeed, although compactness is at first point to specific protuberances on the Dra- blush the least likely of these principles to conian shape that reach out to include yield precision, it can be measured quanti- Democrats, or fissures in it that squirm tatively in terms of dispersion, perimeter, away from Republicans. They would need and population ratios, and the development to show that when towns and communities of standards would thus be possible. See were split, Democrats tended to fall on one generally Pildes & Niemi, Expressive side and Republicans on the other. Al- Harms, ‘‘Bizarre Districts,’’ and Voting though some counterexamples would no Rights: Evaluating Election–District Ap- doubt be present in any complex plan, the pearances After Shaw v. Reno, 92 Mich. plaintiff’s showing as a whole would need L.Rev. 483 (1993); see also Bush v. Vera, to provide reasonable support for, if not 517 U.S., at 1057, 116 S.Ct. 1941 (SOUT- compel, an inference that the district took ER, J., dissenting) (suggesting that such the shape it did because of the distribution measuring formulas might have been ap- of the plaintiff’s group. That would begin, plied to salvage Shaw v. Reno, 509 U.S. but not complete, the plaintiff’s case that 630, 113 S.Ct. 2816, 125 L.Ed.2d 511 the defendant had chosen either to pack 3 (1993)). It is not necessary now to say the group (drawn a district in order to exactly S 349how a district court would bal- include a uselessly high number of the ance a good showing on one of these indi- group) or to crack it (drawn it so as to ces against a poor showing on another, for include fatally few), the ordinary methods that sort of detail is best worked out case of vote dilution in single-member district by case. systems. Ante, at 1781, n. 7. Third, the plaintiff would need to estab- Fourth, a plaintiff would need to present lish specific correlations between the dis- the court with a hypothetical district in-

3. Those measures, as defined by Professors cle in the denominator. Id., at 557. See also Pildes and Niemi, include dispersion, the ratio Polsby & Popper, The Third Criterion: Com- of the area of the district to the area of the pactness as a Procedural Safeguard Against smallest circle that circumscribes the district, Partisan Gerrymandering, 9 Yale L. & Pol’y 92 Mich.L.Rev., at 554–555; perimeter, the Rev. 301, 339–351 (1991) (discussing quanti- ratio of the area of the district to the area of tative measures of compactness, and favoring the circle whose diameter equals the length of the perimeter measure as superior for antig- the area’s perimeter, id., at 555–556; and population, the ratio of the district’s popula- errymandering purposes); Schwartzberg, Re- tion to the population contained by the mini- apportionment, Gerrymanders, and the No- mum convex figure that encloses the district tion of ‘‘Compactness,’’ 50 Minn. L.Rev. 443 (or ‘‘rubber-band’’ area), id., at 556–557, and (1966) (discussing proposed legislation that n. 206. The population measure can also be would have applied a variant of the perimeter taken using the district’s circumscribing cir- measure). 541 U.S. 351 VIETH v. JUBELIRER 1819 Cite as 124 S.Ct. 1769 (2004)

cluding his residence, one in which the politicians not being politically disinterest- proportion of the plaintiff’s group was low- ed or characteristically naive. Davis v. er (in a packing claim) or higher (in a Bandemer, 478 U.S., at 128, 106 S.Ct. 2797 cracking one) and which at the same time (‘‘[W]e think it most likely that whenever a deviated less from traditional districting legislature redistricts, those responsible principles than the actual district. Cf. for the legislation will know the likely po-

Thornburg v. Gingles, 478 U.S. 30, S 35050, litical composition of the new districts’’). I 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986) (re- would, however, treat any showing of in- quiring a similar showing to demonstrate tent in a major-party case as too equivocal that a multimember district is ‘‘responsible to count unless the entire legislature were for minority voters’ inability to elect [their controlled by the governor’s party (or the preferred] candidates’’). This hypothetical dominant legislative party were veto- district would allow the plaintiff to claim proof).5 credibly that the deviations from tradition- S 351If the affected group were not a ma- al districting principles were not only cor- jor party, proof of intent could, admittedly, related with, but also caused by, the pack- be difficult. It would be possible that a ing or cracking of his group. Drawing the legislature might not even have had the hypothetical district would, of course, nec- plaintiff’s group in mind, and a plaintiff essarily involve redrawing at least one con- would naturally have a hard time showing 4 tiguous district, and a plaintiff would have requisite intent behind a plan produced by to show that this could be done subject to a bipartisan commission. traditional districting principles without packing or cracking his group (or another) B worse than in the district being challenged. A plaintiff who got this far would have Fifth, and finally, the plaintiff would shown that his State intentionally acted to have to show that the defendants acted dilute his vote, having ignored reasonable intentionally to manipulate the shape of alternatives consistent with traditional dis- the district in order to pack or crack his tricting principles. I would then shift the group. See Washington v. Davis, 426 U.S. burden to the defendants to justify their 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). decision by reference to objectives other In substantiating claims of political gerry- than naked partisan advantage. They mandering under a plan devised by a sin- might show by rebuttal evidence that dis- gle major party, proving intent should not tricting objectives could not be served by be hard, once the third and fourth (correla- the plaintiff’s hypothetical district better tion and cause) elements are established, than by the district as drawn, or they

4. It would not necessarily involve redrawing 18–19 (citing Terry v. Adams, 345 U.S. 461, 73 other noncontiguous districts, and I would S.Ct. 809, 97 L.Ed. 1152 (1953), the Texas not permit a plaintiff to ask for such a remedy Jaybird primary case). See also Issacharoff, unless he first made out a prima facie case as Gerrymandering and Political Cartels, 116 to multiple districts. See infra, at 1820. Harv. L.Rev. 593 (2002); Issacharoff & 5. Amici JoAnn Erfer et al. suggest that a polit- Pildes, Politics as Markets: Partisan Lockups ical party strong enough to redistrict without of the Democratic Process, 50 Stan. L.Rev. the other’s approval is analogous to a firm 643 (1998). The analogy to antitrust is an that exercises monopolistic control over a intriguing one that may prove fruitful, though market, and that the ability to exercise such I do not embrace it at this point out of cau- unilateral control should therefore trigger tion about a wholesale conceptual transfer ‘‘heightened constitutional scrutiny.’’ Brief from economics to politics. 1820 124 SUPREME COURT REPORTER 541 U.S. 351 might affirmatively establish legitimate ob- Senate districts substantially proportional jectives better served by the lines drawn to their share in the population’’).7 than by the plaintiff’s hypothetical. This is not, however, the time or place The State might, for example, posit the for a comprehensive list of legitimate ob- need to avoid racial vote dilution. Cf. jectives a State might present. The point Bush v. Vera, 517 U.S., at 990, 116 S.Ct. here is simply that the Constitution should 1941 (O’CONNOR, J., concurring) (compli- not petrify traditional districting objectives ance with § 2 of the Voting Rights Act of as exclusive, and it is enough to say that 1965 is a compelling state interest). It the State would be required to explain might plead one person, one vote, a stan- itself, to demonstrate that whatever rea- dard compatible with gerrymandering but sons it gave were more than a mere pre- in some places perhaps unattainable with- text for an old-fashioned gerrymander. out some lopsided proportions. The State might adopt the object of proportional rep- resentation among its political parties S 353C through its districting process. Gaffney v. As for a statewide claim, I would not Cummings, 412 U.S. 735, 754, 93 S.Ct. attempt an ambitious definition without 2321, 37 L.Ed.2d 298 (1973); 6cf. Johnson the benefit of experience with individual v. De Grandy, 512 U.S., at S 3521024, 114 district claims, and for now I would limit S.Ct. 2647 (totality of the circumstances consideration of a statewide claim to one did not support finding of vote dilution built upon a number of district-specific where ‘‘minority groups constitute[d] effec- ones. Each successful district-specific tive voting majorities in a number of state challenge would necessarily entail redraw-

6. Some commentators have criticized Gaffney 1782 (‘‘Deny it as appellants may (and do), itself for failing to account for the harm of [their] standard rests upon the principle that bipartisan political gerrymandering to the po- groups (or at least political-action groups) litical process. E.g., Issacharoff, Political have a right to proportional representation’’). Cartels, supra, at 613 (‘‘Gaffney illustrates the I agree with this Court’s earlier statements problem of the use of a discrimination model that the Constitution guarantees no right to unmoored to any positive account of the elec- proportional representation. See Davis v. toral process’’). Gaffney is settled law, and Bandemer, 478 U.S. 109, 130, 106 S.Ct. 2797, for today’s purposes I would take as given its 92 L.Ed.2d 85 (1986) (plurality opinion) (cit- approval of bipartisan gerrymanders, with ing Whitcomb v. Chavis, 403 U.S. 124, 91 their associated goal of incumbent protection. S.Ct. 1858, 29 L.Ed.2d 363 (1971), and White The plurality may be correct, ante, at 1787, v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 that the test I propose could catch more ob- L.Ed.2d 314 (1973)). It does not follow that jectionable gerrymanders if we rejected in- the Constitution permits every state action cumbent protection as an acceptable purpose intended to achieve any extreme form of dis- of districting. But I am wary of lumping all proportionate representation. ‘‘Proportional measures aimed at incumbent protection to- representation’’ usually refers to a set of pro- gether at this point, and I think we would cedural mechanisms used to guarantee, with gain a better sense of what to do if we waited more or less precision, that a political party’s upon the experience of the district courts in seats in the legislature will be proportionate assessing particular efforts at incumbency to its share of the vote. See generally S. protection offered by the States in responding Issacharoff, P. Karlan, & R. Pildes, The Law to prima facie cases. of Democracy 1089–1172 (rev.2d ed.2002) (discussing voting systems other than the sin- 7. It is worth a moment to address the plurali- gle-member district). The Constitution re- ty’s charge that any judicial remedy for politi- quires a State to adopt neither those mecha- cal gerrymandering necessarily assumes a nisms nor their goal of giving a party seats right to proportional representation. Ante, at proportionate to its vote. 541 U.S. 355 VIETH v. JUBELIRER 1821 Cite as 124 S.Ct. 1769 (2004) ing at least one contiguous district, and the have a degree of subjectivity inconsistent more the successful claims, the more sur- with the judicial function. rounding districts to be redefined. At a The plurality also says that my standard certain point, the ripples would reach the is destined to fail because I have not given state boundary, and it would no longer a precise enough account of the extreme make any sense for a district court to unfairness I would prevent. Ante, at consider the problems piecemeal. 1787–1788. But this objection is more the reliable expression of the plurality’s own D discouragement than the description of an Achilles heel in my suggestion. The harm The plurality says that my proposed from partisan gerrymandering is (as I standard would not solve the essential have said, supra, at 1815, 1818, 1819) a problem of unworkability. It says that species of vote dilution: the point of the ‘‘[i]t does not solve [the] problem [of deter- gerrymander is to capture seats by manip- mining when gerrymandering has gone too ulating district lines to diminish the weight far] to break down the original unanswera- of the other party’s votes in elections. To ble question TTT into four more discrete devise a judicial remedy for that harm, but equally unanswerable questions.’’ however, it is not necessary to adopt a full- Ante, at 1787. It is common sense, howev- blown theory of fairness, furnishing a pre- er, to break down a large and intractable cise measure of harm caused by diver- issue into discrete fragments as a way to gence from the ideal in each case. It is get a handle on the larger one, and the sufficient instead to agree that gerryman- elements I propose are not only tractable dering is, indeed, unfair, as the plurality in theory, but the very subjects that does not dispute; to observe the tradition- judges already deal with in practice. The al methods of the gerrymanderer, which plurality asks, for example, ‘‘[w]hat TTT a the plurality summarizes, ante, at 1774– lower court [is] to do when, as will often be 1776; and to adopt a test aimed at detect- the case, the district adheres to some tra- ing and preventing the use of those meth- ditional criteria but not others?’’ Ibid. ods, which, I think, mine is. If those This question already arises in cases under methods are unnecessary to effective ger- § 2 of the Voting Rights Act of 1965, and rymandering, as the plurality implies, ante, the district courts have not had the same at 1788, it is hard to explain why they have sort of difficulty answering it as they have been so popular down through the ages of in applying the Davis v. Bandemer plurali- American politics. My test would no ty. See, e.g., Johnson v. Hamrick, 155 doubt leave substantial room for a party in F.Supp.2d 1355, 1362–1363 (N.D.Ga.2001) power to seek advantage through its con- (noncontiguity of a plaintiff’s Gingles dis- trol of the districting process; the only tricts was not fatal to a § 2 claim against a way to prevent all opportunism would be municipal districting scheme because ‘‘the to remove districting wholly from legisla- city’s boundaries are rough and asymme- tive control, which I am not prepared to trical TTT [and] the non-contiguous say the Constitution requires. But that porStions354 [of the proposed districts] are does not make it impossible for courts to separated by unincorporated areas and are identify at least the worst cases of gerry- relatively near the districts to which they mandering, and to provide a remedy. The are joined’’). The enquiries I am propos- most the plurality can show is that my ing are not, to be sure, as hard edged as I approach would S 355not catch them all. Cf. wish they could be, but neither do they Scalia, The Rule of Law as a Law of Rules, 1822 124 SUPREME COURT REPORTER 541 U.S. 355

56 U. Chi. L.Rev. 1175, 1178 (1989) (‘‘To have not yet proved) that such circum- achieve what is, from the standpoint of the stances exist here, I would reverse the substantive policies involved, the ‘perfect’ District Court’s dismissal of their com- answer is nice—but it is just one of a plaint. number of competing values’’). S 356The plurality focuses directly on the most difficult issue before us. It says, IV ‘‘[n]o test—yea, not even a five-part test— can possibly be successful unless one In drafting the complaint for this case, knows what he is testing for.’’ Ante, at appellants’ counsel naturally proceeded on 1787 (emphasis in original). That is true. the assumption that they had to satisfy the Thus, I shall describe a set of circum- Davis v. Bandemer plurality, or some revi- stances in which the use of purely political sion in light of Shaw, but not the prima districting criteria could conflict with con- facie case I have in mind. Richard and stitutionally mandated democratic require- Norma Jean Vieth make only statewide ments—circumstances that the courts claims, for which the single district claim should ‘‘test for.’’ I shall then explain why brought by Susan Furey provides insuffi- I believe it possible to find applicable judi- cient grounding. As for Furey’s own cially manageable standards. And I shall claim, her allegations fall short, for exam- illustrate those standards. ple, on the feasibility of an alternative district superior to her own, as I would require. But she might well be able to I allege what I would require, if given leave I start with a fundamental principle. to amend. I would grant her that leave, ‘‘We the People,’’ who ‘‘ordain[ed] and es- and therefore would vacate the judgment tablish[ed]’’ the American Constitution, of the District Court and remand for fur- sought to create and to protect a workable ther proceedings. From the Court’s judg- form of government that is in its ‘‘ ‘princi- ment denying her that opportunity, I re- ples, structure, and whole mass,’ ’’ basical- spectfully dissent. ly democratic. G. Wood, The Creation of the American Republic, 1776–1787, p. 595 (1969) (quoting W. Murray, Political Justice BREYER, dissenting. Sketches, Inscribed to His Excellency The use of purely political considerations John Adams 5 (1787)). See also, e.g., A. in drawing district boundaries is not a Meiklejohn, Free Speech and Its Relation ‘‘necessary evil’’ that, for lack of judicially to Self–Government 14–15 (1948). In a manageable standards, the Constitution in- modern Nation of close to 300 million peo- evitably must tolerate. Rather, pure poli- ple, the workable democracy that the Con- tics often helps to secure constitutionally stitution foresees must mean more than a important democratic objectives. But guaranteed opportunity to elect legislators sometimes it does not. Sometimes purely representing equally populous electoral political ‘‘gerrymandering’’ will fail to ad- districts. Reynolds v. Sims, 377 U.S. 533, vance any plausible democratic objective 568, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); while simultaneously threatening serious Kirkpatrick v. Preisler, 394 U.S. 526, 530– democratic harm. And sometimes when 531, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969); that is so, courts can identify an equal Karcher v. Daggett, 462 U.S. 725, 730, 103 protection violation and provide a remedy. S.Ct. 2653, 77 L.Ed.2d 133 (1983). There Because the plaintiffs could claim (but must also be a method for transforming 541 U.S. 358 VIETH v. JUBELIRER 1823 Cite as 124 S.Ct. 1769 (2004)

the will of the majority into effective gov- That fact means in turn that a party with ernment. a bare majority of votes or even a plurality This Court has explained that political of votes will often obtain a large legislative parties play a necessary role in that trans- majority, perhaps freezing out smaller formation. At a minimum, they help vot- parties. But single-member districts ers assign responsibility for current cir- thereby diminish the need for coalition cumstances, thereby enabling those voters, governments. And that fact makes it easi- er for voters to identify which party is re- through their votes for individual candi- sponsible for government decisionmaking dates, to express satisfaction or dissatisfac- (and which rascals to throw out), while si- tion with the political status quo. Those multaneously providing greater legislative voters can either vote to support that sta- stability. Cf. C. Mershon, The Costs of tus quo or vote to ‘‘throw the rascals out.’’ Coalition: Coalition Theories and Italian S See generally McConnell v. Federal 357 Governments, 90 Am. Pol. Sci. Rev. 534 Election Comm’n, 540 U.S. 93, 188, 124 (1996) (noting that from 1946 to 1992, un- S.Ct. 619, 686, 157 L.Ed.2d 491 (2003); der proportional systems ‘‘almost no [Ital- California Democratic Party v. Jones, 530 ian] government stayed in office more than U.S. 567, 574, 120 S.Ct. 2402, 147 L.Ed.2d a few years, and many governments col- 502 (2000); Colorado Republican Federal lapsed after only a few months’’); Her- Campaign Comm. v. Federal Election mens, Representation and Proportional Comm’n, 518 U.S. 604, 615–616, 116 S.Ct. Representation, S in Choosing an Elector- 2309, 135 L.Ed.2d 795 (1996). A party- 358 al System: Issues and Alternatives 15, 24 based political system that satisfies this (A. Lijphart & B. Grofman eds.1984) (de- minimal condition encourages democratic scribing the ‘‘political paralysis which had responsibility. It facilitates the transfor- become the hallmark of the Fourth Repub- mation of the voters’ will into a govern- lic’’ under proportional representation). ment that reflects that will. See also Duverger, Which is the Best Why do I refer to these elementary Electoral System? in Choosing an Elector- constitutional principles? Because I be- al System, supra, at 31, 32 (arguing that lieve they can help courts identify at least proportional systems ‘‘preven[t] the citi- one abuse at issue in this case. To under- zens from expressing a clear choice for a stand how that is so, one should begin by governmental team,’’ and that nonpropor- asking why single-member electoral dis- tional systems allow voters to ‘‘choose gov- tricts are the norm, why the Constitution ernments with the capacity to make deci- does not insist that the membership of sions’’). This is not to say that single- legislatures better reflect different politi- member districts are preferable; it is sim- cal views held by different groups of vot- ply to say that single-member-district sys- ers. History, of course, is part of the tems and more-directly-representational answer, but it does not tell the entire systems reflect different conclusions about story. The answer also lies in the fact the proper balance of different elements of that a single-member-district system helps a workable democratic government. to ensure certain democratic objectives If single-member districts are the norm, better than many ‘‘more representative’’ however, then political considerations will (i.e., proportional) electoral systems. Of likely play an important, and proper, role course, single-member districts mean that in the drawing of district boundaries. In only parties with candidates who finish part, that is because politicians, unlike ‘‘first past the post’’ will elect legislators. nonpartisan observers, normally under- 1824 124 SUPREME COURT REPORTER 541 U.S. 358

stand how ‘‘the location and shape of dis- Given the resulting need for single- tricts’’ determine ‘‘the political complexion member districts with nonrandom bound- of the area.’’ Gaffney v. Cummings, 412 aries, it is not surprising that ‘‘traditional’’ U.S. 735, 753, 93 S.Ct. 2321, 37 L.Ed.2d districting principles have rarely, if ever, 298 (1973). It is precisely because politi- been politically neutral. Rather, because, cians are best able to predict the effects of in recent political memory, Democrats boundary changes that the districts they have often been concentrated in cities design usually make some political sense. while Republicans have often been concen- See, e.g., Persily, In Defense of Foxes trated in suburbs and sometimes rural ar- Guarding Henhouses: The Case for Judi- eas, geographically drawn boundaries have cial Acquiescence to Incumbent–Protecting tended to ‘‘pac[k]’’ the former. See ante, Gerrymanders, 116 Harv. L.Rev. 649, 678, at 1783 (plurality opinion) (citing Davis v. and nn. 94–95 (2002) (recounting the au- Bandemer, 478 U.S. 109, 159, 106 S.Ct. thor’s experience as a neutral court-ap- 2797, 92 L.Ed.2d 85 (1986) (O’CONNOR, pointed boundary drawer, in which the J., concurring in judgment)); Lowenstein plan he helped draw moved an uninhabited & Steinberg, The Quest for Legislative Districting in the Public Interest: Elusive swamp from one district to another, there- or Illusory? 33 UCLA L.Rev. 1, 9 (1985) by inadvertently disrupting environmental (explaining that the ‘‘ ‘formal’ criteria TTT projects that were important to the politi- do not live up to their advance billing as cian representing the swamp’s former dis- ‘fair’ or ‘neutral’ ’’). Neighborhood or trict). community-based boundaries, seeking to More important for present purposes, group Irish, Jewish, or African–American the role of political considerations reflects voters, often did the same. All this is well a surprising mathematical fact. Given a known to politicians, who use their knowl- fairly large state population with a fairly edge about the effects of the ‘‘neutral’’ criteria to partisan advantage when draw- large conSgressional359 delegation, districts assigned so as to be perfectly random in ing electoral maps. And were it not so, respect to politics would translate a small the iron laws of mathematics would have shift in political sentiment, say a shift from worked their extraordinary volatility-en- 51% Republican to 49% Republican, into a hancing will.

seismic shift in the makeup of the legisla- S 360This is to say that traditional or his- tive delegation, say from 100% Republican torically based boundaries are not, and to 100% Democrat. See M. Altman, Mod- should not be, ‘‘politics free.’’ Rather, eling the Effect of Mandatory District those boundaries represent a series of Compactness on Partisan Gerrymanders, compromises of principle—among the vir- 17 Pol. Geography 989, 1002 (1998) (sug- tues of, for example, close representation gesting that, where the state population is of voter views, ease of identifying ‘‘govern- large enough, even randomly selected com- ment’’ and ‘‘opposition’’ parties, and stabili- pact districts will generally elect no politi- ty in government. They also represent an cians from the party that wins fewer votes uneasy truce, sanctioned by tradition, statewide). Any such exaggeration of tiny among different parties seeking political electoral changes—virtually wiping out advantage. legislative representation of the minority As I have said, reference back to these party—would itself seem highly undemoc- underlying considerations helps to explain ratic. why the legislature’s use of political bound- 541 U.S. 362 VIETH v. JUBELIRER 1825 Cite as 124 S.Ct. 1769 (2004) ary-drawing considerations ordinarily does of the people of a State could elect a not violate the Constitution’s Equal Pro- majority of that State’s legislators. To tection Clause. The reason lies not simply conclude differently, and to sanction mi- in the difficulty of identifying abuse or nority control of state legislative bodies, finding an appropriate judicial remedy. would appear to deny majority rights in The reason is more fundamental: Ordi- a way that far surpasses any possible narily, there simply is no abuse. The use denial of minority rights that might oth- of purely political boundary-drawing fac- erwise be thought to result. Since legis- tors, even where harmful to the members latures are responsible for enacting laws of one party, will often nonetheless find by which all citizens are to be governed, justification in other desirable democratic they should be bodies which are collec- ends, such as maintaining relatively stable tively responsive to the popular will.’’ legislatures in which a minority party re- Reynolds, 377 U.S., at 565, 84 S.Ct. tains significant representation. 1362.

II Where unjustified entrenchment takes place, voters find it far more difficult to At the same time, these considerations can help identify at least one circumstance remove those responsible for a govern- where use of purely political boundary- ment they do not want; and these demo- drawing factors can amount to a serious, cratic values are dishonored. and remediable, abuse, namely, the unjust- The need for legislative stability cannot ified use of political factors to entrench a justify entrenchment, for stability is com- minority in power. By entrenchment I patible with a system in which the loss of mean a situation in which a party that majority support implies a loss of power. enjoys only minority support among the The need to secure minority representa- populace has nonetheless contrived to take, tion in the legislature cannot justify en- and hold, legislative power. By unjusti- trenchment, for minority party representa- fied entrenchment I mean that the minori- tion is also compatible with a system in ty’s hold on power is purely the result of which the loss of minority support implies partisan manipulation and not other fac- a loss of representation. Constitutionally tors. These ‘‘other’’ factors that could lead specified principles of representation, such to ‘‘justified’’ (albeit temporary) minority as that of two Senators per State, cannot entrenchment include sheer happenstance, justify entrenchment where the House of the existence of more than two major par- Representatives or similar state legislative ties, the unique constitutional require- body is at issue. Unless some other justi- ments of certain representational bodSies361 fication can be found in particular circum- such as the Senate, or reliance on tradi- stances, political gerrymandering that so tional (geographic, communities of interest, entrenches a minority party in power vio- etc.) districting criteria. lates basic democratic norms and lacks The democratic harm of unjustified en- countervailing justification. For this trenchment is obvious. As this Court has S 362reason, whether political gerrymander- written in respect to popularly based elec- ing does, or does not, violate the Constitu- toral districts: tion in other instances, gerrymandering ‘‘Logically, in a society ostensibly that leads to entrenchment amounts to an grounded on representative government, abuse that violates the Constitution’s it would seem reasonable that a majority Equal Protection Clause. 1826 124 SUPREME COURT REPORTER 541 U.S. 362

III Ibid.; Iowa General Assembly, Legislative Courts need not intervene often to pre- Service Bureau, Legislative Guide to Re- vent the kind of abuse I have described, districting (Dec. 2000), available because those harmed constitute a political at http://www.legis.state.ia.us/Central/ majority, and a majority normally can LSB/Guides/redist.htm. Indeed, where work its political will. Where a State has state governments have been unwilling or improperly gerrymandered legislative or unable to act, ‘‘an informed, civically mili- congressional districts to the majority’s tant electorate,’’ Baker v. Carr, 369 U.S. disadvantage, the majority should be able 186, 270, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) to elect officials in statewide races—partic- (Frankfurter, J., dissenting), has occasion- ularly the Governor—who may help to ally taken matters into its own hands, undo the harm that districting has caused through ballot initiatives or referendums. the majority’s party, in the next round of Arizona voters, for example, passed Propo- districting if not sooner. And where a sition 106, which amended the State’s Con- State has improperly gerrymandered con- stitution and created an independent redis- gressional districts, Congress retains the tricting commission to draw legislative and power to revise the State’s districting de- congressional districts. Ariz. Const., Art. terminations. See U.S. Const., Art. I, § 4; 4, pt. 2, § 1 (West 2001). Such reforms ante, at 1775–1776 (plurality opinion) (dis- cussing the history of Congress’ ‘‘power to borrow from the systems used by other check partisan manipulation of the election countries utilizing single-member districts. process by the States’’). See, e.g., Administration and Cost of Elec- tions Project, Boundary Delimitation Moreover, voters in some States, per- (hereinafter ACE Project), Representation haps tiring of the political boundary-draw- ing rivalry, have found a procedural solu- in the Canadian Parliament, available at tion, confiding the task to a commission http://www.aceproject.org/main/english/bd/ that is limited in the extent to which it bdy ca.htm (describing Canada’s indepen- may base districts on partisan concerns. dent boundary commissions, which draft According to the National Conference of maps based on equality of population, com- State Legislatures, 12 States currently munities of interest, and geographic fac- give ‘‘first and final authority for [state] tors); ACE Project, The United Kingdom legislative redistricting to a group other Redistribution Process, available at http:// than the legislature.’’ National Confer- www.aceproject.org/main/english/bd/bdy ence of State Legislatures, Redistricting gb.htm (describing the United Kingdom’s Commissions and Alternatives to the Leg- independent boundary commissions, which islature Conducting Redistricting (2004), make recommendations to Parliament af- available at http://www.ncsl.org/programs/ ter consultation with the public); G. Gud- legman/Redistrict/Com & alter.htm (all In- gin & P. Taylor, Seats, Votes, and the ternet materials as visited Mar. 29, 2004, Spatial Organisation of Elections 8 (1979) and available in Clerk of Court’s case file). (noting that the United Kingdom’s bound- A number of States use a commission for ary commissions are ‘‘explicitly neutral in congressional redistricting: Arizona, Ha- a party political sense’’). waii, Idaho, Montana, New Jersey, and

Washington, with Indiana S 363using a com- But we cannot always count on a severe- mission if the legislature cannot pass a ly gerrymandered legislature itself to find plan and Iowa requiring the district-draw- and implement a remedy. See Bandemer, ing body not to consider political data. 478 U.S., at 126, 106 S.Ct. 2797. The 541 U.S. 365 VIETH v. JUBELIRER 1827 Cite as 124 S.Ct. 1769 (2004)

party that controls the process has no state legislature). See also Issacharoff, incentive to change it. And the political Judging Politics: The Elusive Quest for advantages of a gerrymander may become Judicial Review of Political Fairness, 71

ever greater in the future. S 364The avail- Texas L.Rev. 1643, 1688–1690, and nn. ability of enhanced computer technology 227–233 (1993) (reporting that, in the wake allows the parties to redraw boundaries in of the 1980 census, there were 13 court- ways that target individual neighborhoods ordered plans for congressional redistrict- and homes, carving out safe but slim victo- ing, 5 plans that the courts rejected and ry margins in the maximum number of returned to state legislatures for redraft- districts, with little risk of cutting their ing, 7 court-ordered state senate plans, 8 margins too thin. See generally Handley, state senate S 365plans rejected and sent A Guide to 2000 Redistricting Tools and back to the state legislatures, 6 court- Technology, in The Real Y2K Problem: ordered state house plans, and 9 state Census 2000 Data and Redistricting Tech- house plans sent back for further legisla- nology (N. Persily ed.2000); Karlan, The tive action—all of which meant that, leav- Fire Next Time: Reapportionment After ing aside the preclearance provisions of the 2000 Census, 50 Stan. L.Rev. 731, 736 § 5 of the Voting Rights Act of 1965, (1998); ante, at 1816 (SOUTER, J., dis- about one-third of all redistricting was senting). By redrawing districts every 2 done either directly by the federal courts years, rather than every 10 years, a party or under courts’ injunctive authority (cit- might preserve its political advantages not- ing cases)). Moreover, if the dangers of withstanding population shifts in the State. inadvertent political favoritism prove too The combination of increasingly precise great, a procedural solution, such as the map-drawing technology and increasingly use of a politically balanced boundary- frequent map drawing means that a party drawing commission, may prove possible. may be able to bring about a gerrymander that is not only precise, but virtually im- The bottom line is that courts should be possible to dislodge. Thus, court action able to identify the presence of one impor- may prove necessary. tant gerrymandering evil, the unjustified entrenching in power of a political party When it is necessary, a court should that the voters have rejected. They prove capable of finding an appropriate should be able to separate the unjustified remedy. Courts have developed district- abuse of partisan boundary-drawing con- ing remedies in other cases. See, e.g., Branch v. Smith, 538 U.S. 254, 123 S.Ct. siderations to achieve that end from their 1429, 155 L.Ed.2d 407 (2003) (affirming more ordinary and justified use. And they the District Court’s injunction of use of should be able to design a remedy for state court’s redistricting plan and order extreme cases. that its own plan be used until a state plan could be precleared under the Voting IV Rights Act of 1965); Karcher, 462 U.S. I do not claim that the problem of iden- 725, 103 S.Ct. 2653, 77 L.Ed.2d 133 (up- tification and separation is easily solved, holding the District Court’s holding that a even in extreme instances. But courts can congressional reapportionment plan was identify a number of strong indicia of unconstitutional); Reynolds, 377 U.S., at abuse. The presence of actual entrench- 586–587, 84 S.Ct. 1362 (upholding the Dis- ment, while not always unjustified (being trict Court’s actions in ordering into effect perhaps a chance occurrence), is such a a reapportionment of both houses of the sign, particularly when accompanied by 1828 124 SUPREME COURT REPORTER 541 U.S. 365 the use of partisan boundary-drawing cri- reference to an effort to obtain partisan teria in the way that Justice STEVENS political advantage; and (d) a majority describes, i.e., a use that both departs party (as defined above) has once failed to from traditional criteria and cannot be ex- obtain a majority of the relevant seats in plained other than by efforts to achieve election using the challenged map (which partisan advantage. Below, I set forth fact cannot be explained by the existence several sets of circumstances that lay out of multiple parties or in other neutral the indicia of abuse I have in mind. The ways). These circumstances could also scenarios fall along a continuum: The add up to unconstitutional gerrymander- more permanently entrenched the minori- ing. ty’s hold on power becomes, the less evi- Third, suppose that the legislature clear- dence courts will need that the minority ly departs from ordinary districting norms, engaged in gerrymandering to achieve the but the entrenchment harm, while serious- desired result. ly threatened, has not yet occurred. E.g., Consider, for example, the following sets (a) the legislature has redrawn district of circumstances. First, suppose that the boundaries more than once within the tra- legislature has proceeded to redraw ditional 10–year census-related period—ei- S 366boundaries in what seem to be ordinary ther, as here, at the behest of a court that ways, but the entrenchment harm has be- struck down an initial plan as unlawful, see come obvious. E.g., (a) the legislature has Vieth v. Pennsylvania, 195 F.Supp.2d 672 not redrawn district boundaries more than (M.D.Pa.2002) (per curiam) (finding that once within the traditional 10–year period; Pennsylvania’s first redistricting plan vio- and (b) no radical departure from tradi- lated the one-Sperson,367 one-vote mandate), tional districting criteria is alleged; but (c) or of its own accord; (b) the boundary- a majority party (as measured by the votes drawing criteria depart radically from pre- actually cast for all candidates who identify vious traditional boundary-drawing crite- themselves as members of that party in ria; (c) strong, objective, unrefuted statis- the relevant set of elections; i.e., in con- tical evidence demonstrates that a party gressional elections if a congressional map with a minority of the popular vote within is being challenged) has twice failed to the State in all likelihood will obtain a obtain a majority of the relevant legislative majority of the seats in the relevant repre- seats in elections; and (d) the failure can- sentative delegation; and (d) the jettison- not be explained by the existence of multi- ing of traditional districting criteria cannot ple parties or in other neutral ways. In be justified or explained other than by my view, these circumstances would be reference to an effort to obtain partisan sufficient to support a claim of unconstitu- political advantage. To my mind, such tional entrenchment. circumstances could also support a claim, Second, suppose that plaintiffs could because the presence of midcycle redis- point to more serious departures from re- tricting, for any reason, raises a fair infer- districting norms. E.g., (a) the legislature ence that partisan machinations played a has not redrawn district boundaries more major role in the map-drawing process. than once within the traditional 10–year Where such an inference is accompanied period; but (b) the boundary-drawing cri- by statistical evidence that entrenchment teria depart radically from previous or tra- will be the likely result, a court may con- ditional criteria; (c) the departure cannot clude that the map crosses the constitu- be justified or explained other than by tional line we are describing. 541 U.S. 368 VIETH v. JUBELIRER 1829 Cite as 124 S.Ct. 1769 (2004)

The presence of these, or similar, cir- ent standards—all of them different from cumstances—where the risk of entrench- the two proposed in Bandemer and the ment is demonstrated, where partisan con- one proposed here by appellants—goes a siderations render the traditional district- long way to establishing that there is no drawing compromises irrelevant, where no constitutionally discernible standard.’’ justification other than party advantage Ante, at 1784. can be found—seem to me extreme enough Does it? The dissenting opinions rec- to set off a constitutional alarm. The risk ommend sets of standards that differ in of harm to basic democratic principle is certain respects. Members of a majority serious; identification is possible; and might well seek to reconcile such differ- remedies can be found. ences. But dissenters might instead be- V lieve that the more thorough, specific reasoning that accompanies separate The plurality sets forth several criti- statements will stimulate further discus- cisms of my approach. Some of those sion. And that discussion could lead to criticisms are overstated. Compare ante, change in the law, where, as here, one at 1789 (‘‘[O]f course there always is a member of the majority, disagreeing with neutral explanation [of gerrymandering]— the plurality as to justiciability, remains if only the time-honored criterion of incum- in search of appropriate standards. See bent protection’’), with Brief for Appellants ante, at 1796 (KENNEDY, J., concurring 13 (pointing to examples of efforts to ger- in judgment). rymander an incumbent of the opposition party out of office and elect a new member of the controlling party); compare ante, at VI 1789 (complaining of ‘‘the difficulties of In the case before us, there is a strong assessing partisan strength statewide’’), likelihood that the plaintiffs’ complaint with supra, at 1828 (identifying the ‘‘ma- could be amended readily to assert circum- jority party’’ simply by S adding up ‘‘the 368 stances consistent with those I have set votes actually cast for all candidates who forth as appropriate for judicial interven- identify themselves as members of that tion. For that reason, I would authorize party in the relevant set of elections’’). the plaintiffs to proceed; and I dissent Other criticisms involve differing judg- from the majority’s contrary determina- ments. Compare ante, at 1789 (complain- tion. ing about the vagueness of unjustified po- litical machination, ‘‘whatever that means,’’ and of unjustified entrenchment), with su- pra, at 1825 (detailed discussion of ‘‘justi- fied’’ and Reynolds v. Sims); compare ante, at 1789 (finding costs of judicial in- , tervention too high), with supra, at 1827 (finding costs warranted to ensure majori- ty rule). But the plurality makes one criticism that warrants a more elaborate response. It observes ‘‘that the mere fact that these four dissenters come up with three differ-