Rucho v. Common Cause

(Slip Opinion) OCTOBER TERM, 2018 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

RUCHO ET AL. v. COMMON CAUSE ET AL.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF NORTH CAROLINA

No. 18–422. Argued March 26, 2019—Decided June 27, 2019*

Voters and other plaintiffs in North Carolina and Maryland filed suits

challenging their States’ congressional districting maps as unconsti-

tutional partisan gerrymanders. The North Carolina plaintiffs

claimed that the State’s districting plan discriminated against Demo-

crats, while the Maryland plaintiffs claimed that their State’s plan

discriminated against Republicans. The plaintiffs alleged violations

of the First Amendment, the Equal Protection Clause of the Four-

teenth Amendment, the Elections Clause, and Article I, §2. The Dis-

trict Courts in both cases ruled in favor of the plaintiffs, and the de-

fendants appealed directly to this Court.

Held: Partisan gerrymandering claims present political questions be-

yond the reach of the federal courts. Pp. 6–34.

(a) In these cases, the Court is asked to decide an important ques-

tion of constitutional law. Before it does so, the Court “must find that

the question is presented in a ‘case’ or ‘controversy’ that is . . . ‘of a

Judiciary Nature.’ ” DaimlerChrysler Corp. v. Cuno, 547 U. S. 332,

342. While it is “the province and duty of the judicial department to

say what the law is,” Marbury v. Madison, 1 Cranch 137, 177, some-

times the law is that the Judiciary cannot entertain a claim because

it presents a nonjusticiable “political question,” Baker v. Carr, 369

U. S. 186, 217. Among the political question cases this Court has

identified are those that lack “judicially discoverable and manageable

standards for resolving [them].” Ibid. This Court’s partisan gerry-

mandering cases have left unresolved the question whether such

claims are claims of legal right, resolvable according to legal princi-

——————

*Together with No. 18–726, Lamone et al. v. Benisek et al., on appeal

from the United States District Court for the District of Maryland.

2 RUCHO v. COMMON CAUSE

Syllabus

ples, or political questions that must find their resolution elsewhere.

See Gill v. Whitford, 585 U. S. ___, ___.

Partisan gerrymandering was known in the Colonies prior to Inde-

pendence, and the Framers were familiar with it at the time of the

drafting and ratification of the Constitution. They addressed the

election of Representatives to Congress in the Elections Clause,

Art. I, §4, cl. 1, assigning to state legislatures the power to prescribe

the “Times, Places and Manner of holding Elections” for Members of

Congress, while giving Congress the power to “make or alter” any

such regulations. Congress has regularly exercised its Elections

Clause power, including to address partisan gerrymandering. But

the Framers did not set aside all electoral issues as questions that

only Congress can resolve. In two areas—one-person, one-vote and

racial gerrymandering—this Court has held that there is a role for

the courts with respect to at least some issues that could arise from a

State’s drawing of congressional districts. But the history of partisan

gerrymandering is not irrelevant. Aware of electoral districting prob-

lems, the Framers chose a characteristic approach, assigning the is-

sue to the state legislatures, expressly checked and balanced by the

Federal Congress, with no suggestion that the federal courts had a

role to play.

Courts have nonetheless been called upon to resolve a variety of

questions surrounding districting. The claim of population inequality

among districts in Baker v. Carr, for example, could be decided under

basic equal protection principles. 369 U. S., at 226. Racial discrimi-

nation in districting also raises constitutional issues that can be ad-

dressed by the federal courts. See Gomillion v. Lightfoot, 364 U. S.

339, 340. Partisan gerrymandering claims have proved far more dif-

ficult to adjudicate, in part because “a jurisdiction may engage in

constitutional political gerrymandering.” Hunt v. Cromartie, 526

U. S. 541, 551. To hold that legislators cannot take their partisan in-

terests into account when drawing district lines would essentially

countermand the Framers’ decision to entrust districting to political

entities. The “central problem” is “determining when political ger-

rymandering has gone too far.” Vieth v. Jubelirer, 541 U. S. 267, 296

(plurality opinion). Despite considerable efforts in Gaffney v. Cum-

mings, 412 U. S. 735, 753; Davis v. Bandemer, 478 U. S. 109, 116–

117; Vieth, 541 U. S., at 272–273; and League of United Latin Ameri-

can Citizens v. Perry, 548 U. S. 399, 414 (LULAC), this Court’s prior

cases have left “unresolved whether . . . claims [of legal right] may be

brought in cases involving allegations of partisan gerrymandering,”

Gill, 585 U. S., at ___. Two “threshold questions” remained: stand-

ing, which was addressed in Gill, and “whether [such] claims are jus-

ticiable.” Ibid. Pp. 6–14.

Cite as: 588 U. S. ____ (2019) 3

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(b) Any standard for resolving partisan gerrymandering claims

must be grounded in a “limited and precise rationale” and be “clear,

manageable, and politically neutral.” Vieth, 541 U. S., at 306–308

(Kennedy, J., concurring in judgment). The question is one of degree:

How to “provid[e] a standard for deciding how much partisan domi-

nance is too much.” LULAC, 548 U. S., at 420 (opinion of Kennedy,

J.). Partisan gerrymandering claims rest on an instinct that groups

with a certain level of political support should enjoy a commensurate

level of political power and influence. Such claims invariably sound

in a desire for proportional representation, but the Constitution does

not require proportional representation, and federal courts are nei-

ther equipped nor authorized to apportion political power as a matter

of fairness. It is not even clear what fairness looks like in this con-

text. It may mean achieving a greater number of competitive dis-

tricts by undoing packing and cracking so that supporters of the dis-

advantaged party have a better shot at electing their preferred

candidates. But it could mean engaging in cracking and packing to

ensure each party its “appropriate” share of “safe” seats. Or perhaps

it should be measured by adherence to “traditional” districting crite-

ria. Deciding among those different visions of fairness poses basic

questions that are political, not legal. There are no legal standards

discernible in the Constitution for making such judgments. And it is

only after determining how to define fairness that one can even begin

to answer the determinative question: “How much is too much?”

The fact that the Court can adjudicate one-person, one-vote claims

does not mean that partisan gerrymandering claims are justiciable.

This Court’s one-person, one-vote cases recognize that each person is

entitled to an equal say in the election of representatives. It hardly

follows from that principle that a person is entitled to have his politi-

cal party achieve representation commensurate to its share of

statewide support. Vote dilution in the one-person, one-vote cases re-

fers to the idea that each vote must carry equal weight. That re-

quirement does not extend to political parties; it does not mean that

each party must be influential in proportion to the number of its sup-

porters. The racial gerrymandering cases are also inapposite: They

call for the elimination of a racial classification, but a partisan ger-

rymandering claim cannot ask for the elimination of partisanship.

Pp. 15–21.

(c) None of the proposed “tests” for evaluating partisan gerryman-

dering claims meets the need for a limited and precise standard that

is judicially discernible and manageable. Pp. 22–30.

(1) The Common Cause District Court concluded that all but one

of the districts in North Carolina’s 2016 Plan violated the Equal Pro-

tection Clause by intentionally diluting the voting strength of Demo-

4 RUCHO v. COMMON CAUSE

Syllabus

crats. It applied a three-part test, examining intent, effects, and cau-

sation. The District Court’s “predominant intent” prong is borrowed

from the test used in racial gerrymandering cases. However, unlike

race-based decisionmaking, which is “inherently suspect,” Miller v.

Johnson, 515 U. S. 900, 915, districting for some level of partisan ad-

vantage is not unconstitutional. Determining that lines were drawn

on the basis of partisanship does not indicate that districting was

constitutionally impermissible. The Common Cause District Court

also required the plaintiffs to show that vote dilution is “likely to per-

sist” to such a degree that the elected representatives will feel free to

ignore the concerns of the supporters of the minority party. Experi-

ence proves that accurately predicting electoral outcomes is not sim-

ple, and asking judges to predict how a particular districting map

will perform in future elections risks basing constitutional holdings

on unstable ground outside judicial expertise. The District Court’s

third prong—which gave the defendants an opportunity to show that

discriminatory effects were due to a “legitimate redistricting objec-

tive”—just restates the question asked at the “predominant intent”

prong. Pp. 22–25.

(2) The District Courts also found partisan gerrymandering

claims justiciable under the First Amendment, coalescing around a

basic three-part test: proof of intent to burden individuals based on

their voting history or party affiliation, an actual burden on political

speech or associational rights, and a causal link between the invidi-

ous intent and actual burden. But their analysis offers no “clear” and

“manageable” way of distinguishing permissible from impermissible

partisan motivation. Pp. 25–27.

(3) Using a State’s own districting criteria as a baseline from

which to measure how extreme a partisan gerrymander is would be

indeterminate and arbitrary. Doing so would still leave open the

question of how much political motivation and effect is too much.

Pp. 27–29.

(4) The North Carolina District Court further held that the 2016

Plan violated Article I, §2, and the Elections Clause, Art. I, §4, cl. 1.

But the Vieth plurality concluded—without objection from any other

Justice—that neither §2 nor §4 “provides a judicially enforceable limit

on the political considerations that the States and Congress may

take into account when districting.” 541 U. S., at 305. Any assertion

that partisan gerrymanders violate the core right of voters to choose

their representatives is an objection more likely grounded in the

Guarantee Clause of Article IV, §4, which “guarantee[s] to every

State in [the] Union a Republican Form of Government.” This Court

has several times concluded that the Guarantee Clause does not pro-

Cite as: 588 U. S. ____ (2019) 5

Syllabus

vide the basis for a justiciable claim. See, e.g., Pacific States Tele-

phone & Telegraph Co. v. Oregon, 223 U. S. 118. Pp. 29–30.

(d) The conclusion that partisan gerrymandering claims are not

justiciable neither condones excessive partisan gerrymandering nor

condemns complaints about districting to echo into a void. Numerous

States are actively addressing the issue through state constitutional

amendments and legislation placing power to draw electoral districts

in the hands of independent commissions, mandating particular dis-

tricting criteria for their mapmakers, or prohibiting drawing district

lines for partisan advantage. The Framers also gave Congress the

power to do something about partisan gerrymandering in the Elec-

tions Clause. That avenue for reform established by the Framers,

and used by Congress in the past, remains open. Pp. 30–34.

318 F. Supp. 3d 777 and 348 F. Supp. 3d 493, vacated and remanded.

ROBERTS, C. J., delivered the opinion of the Court, in which THOMAS,

ALITO, GORSUCH, and KAVANAUGH, JJ., joined. KAGAN, J., filed a dis-

senting opinion, in which GINSBURG, BREYER, and SOTOMAYOR, JJ.,

joined.

Cite as: 588 U. S. ____ (2019) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 18–422, 18–726

_________________

ROBERT A. RUCHO, ET AL., APPELLANTS

18–422 v.

COMMON CAUSE, ET AL.; AND

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF NORTH CAROLINA

LINDA H. LAMONE, ET AL., APPELLANTS

18–726 v.

O. JOHN BENISEK, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF MARYLAND

[June 27, 2019]

CHIEF JUSTICE ROBERTS delivered the opinion of the

Court.

Voters and other plaintiffs in North Carolina and Mary-

land challenged their States’ congressional districting

maps as unconstitutional partisan gerrymanders. The

North Carolina plaintiffs complained that the State’s

districting plan discriminated against Democrats; the

Maryland plaintiffs complained that their State’s plan

discriminated against Republicans. The plaintiffs alleged

that the gerrymandering violated the First Amendment,

the Equal Protection Clause of the Fourteenth Amend-

ment, the Elections Clause, and Article I, §2, of the Con-

stitution. The District Courts in both cases ruled in favor

2 RUCHO v. COMMON CAUSE

Opinion of the Court

of the plaintiffs, and the defendants appealed directly to

this Court.

These cases require us to consider once again whether

claims of excessive partisanship in districting are “justici-

able”—that is, properly suited for resolution by the federal

courts. This Court has not previously struck down a

districting plan as an unconstitutional partisan gerry-

mander, and has struggled without success over the past

several decades to discern judicially manageable stand-

ards for deciding such claims. The districting plans at

issue here are highly partisan, by any measure. The

question is whether the courts below appropriately exer-

cised judicial power when they found them unconstitu-

tional as well.

I

A

The first case involves a challenge to the congressional

redistricting plan enacted by the Republican-controlled

North Carolina General Assembly in 2016. Rucho v.

Common Cause, No. 18–422. The Republican legislators

leading the redistricting effort instructed their mapmaker

to use political data to draw a map that would produce a

congressional delegation of ten Republicans and three

Democrats. 318 F. Supp. 3d 777, 807–808 (MDNC 2018).

As one of the two Republicans chairing the redistricting

committee stated, “I think electing Republicans is better

than electing Democrats. So I drew this map to help foster

what I think is better for the country.” Id., at 809. He

further explained that the map was drawn with the aim of

electing ten Republicans and three Democrats because he

did “not believe it [would be] possible to draw a map with

11 Republicans and 2 Democrats.” Id., at 808. One Demo-

cratic state senator objected that entrenching the 10–3

advantage for Republicans was not “fair, reasonable, [or]

balanced” because, as recently as 2012, “Democratic con-

Cite as: 588 U. S. ____ (2019) 3

Opinion of the Court

gressional candidates had received more votes on a

statewide basis than Republican candidates.” Ibid. The

General Assembly was not swayed by that objection and

approved the 2016 Plan by a party-line vote. Id., at 809.

In November 2016, North Carolina conducted congres-

sional elections using the 2016 Plan, and Republican

candidates won 10 of the 13 congressional districts. Id., at

810. In the 2018 elections, Republican candidates won

nine congressional districts, while Democratic candidates

won three. The Republican candidate narrowly prevailed

in the remaining district, but the State Board of Elections

called a new election after allegations of fraud.

This litigation began in August 2016, when the North

Carolina Democratic Party, Common Cause (a nonprofit

organization), and 14 individual North Carolina voters

sued the two lawmakers who had led the redistricting

effort and other state defendants in Federal District

Court. Shortly thereafter, the League of Women Voters of

North Carolina and a dozen additional North Carolina

voters filed a similar complaint. The two cases were

consolidated.

The plaintiffs challenged the 2016 Plan on multiple

constitutional grounds. First, they alleged that the Plan

violated the Equal Protection Clause of the Fourteenth

Amendment by intentionally diluting the electoral

strength of Democratic voters. Second, they claimed that

the Plan violated their First Amendment rights by retali-

ating against supporters of Democratic candidates on the

basis of their political beliefs. Third, they asserted that

the Plan usurped the right of “the People” to elect their

preferred candidates for Congress, in violation of the

requirement in Article I, §2, of the Constitution that

Members of the House of Representatives be chosen “by

the People of the several States.” Finally, they alleged

that the Plan violated the Elections Clause by exceeding

the State’s delegated authority to prescribe the “Times,

4 RUCHO v. COMMON CAUSE

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Places and Manner of holding Elections” for Members of

Congress.

After a four-day trial, the three-judge District Court

unanimously concluded that the 2016 Plan violated the

Equal Protection Clause and Article I of the Constitution.

The court further held, with Judge Osteen dissenting, that

the Plan violated the First Amendment. Common Cause

v. Rucho, 279 F. Supp. 3d 587 (MDNC 2018). The defend-

ants appealed directly to this Court under 28 U. S. C.

§1253.

While that appeal was pending, we decided Gill v. Whit-

ford, 585 U. S. ___ (2018), a partisan gerrymandering case

out of Wisconsin. In that case, we held that a plaintiff

asserting a partisan gerrymandering claim based on a

theory of vote dilution must establish standing by showing

he lives in an allegedly “cracked” or “packed” district. Id.,

at ___ (slip op., at 17). A “cracked” district is one in which

a party’s supporters are divided among multiple districts,

so that they fall short of a majority in each; a “packed”

district is one in which a party’s supporters are highly

concentrated, so they win that district by a large margin,

“wasting” many votes that would improve their chances in

others. Id., at ___–___ (slip op., at 3–4).

After deciding Gill, we remanded the present case for

further consideration by the District Court. 585 U. S. ___

(2018). On remand, the District Court again struck down

the 2016 Plan. 318 F. Supp. 3d 777. It found standing

and concluded that the case was appropriate for judicial

resolution. On the merits, the court found that “the Gen-

eral Assembly’s predominant intent was to discriminate

against voters who supported or were likely to support

non-Republican candidates,” and to “entrench Republican

candidates” through widespread cracking and packing of

Democratic voters. Id., at 883–884. The court rejected the

defendants’ arguments that the distribution of Republican

and Democratic voters throughout North Carolina and the

Cite as: 588 U. S. ____ (2019) 5

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interest in protecting incumbents neutrally explained the

2016 Plan’s discriminatory effects. Id., at 896–899. In the

end, the District Court held that 12 of the 13 districts

constituted partisan gerrymanders that violated the Equal

Protection Clause. Id., at 923.

The court also agreed with the plaintiffs that the 2016

Plan discriminated against them because of their political

speech and association, in violation of the First Amend-

ment. Id., at 935. Judge Osteen dissented with respect to

that ruling. Id., at 954–955. Finally, the District Court

concluded that the 2016 Plan violated the Elections Clause

and Article I, §2. Id., at 935–941. The District Court

enjoined the State from using the 2016 Plan in any elec-

tion after the November 2018 general election. Id., at 942.

The defendants again appealed to this Court, and we

postponed jurisdiction. 586 U. S. ___ (2019).

B

The second case before us is Lamone v. Benisek, No. 18–

726. In 2011, the Maryland Legislature—dominated by

Democrats—undertook to redraw the lines of that State’s

eight congressional districts. The Governor at the time,

Democrat Martin O’Malley, led the process. He appointed

a redistricting committee to help redraw the map, and

asked Congressman Steny Hoyer, who has described

himself as a “serial gerrymanderer,” to advise the commit-

tee. 348 F. Supp. 3d 493, 502 (Md. 2018). The Governor

later testified that his aim was to “use the redistricting

process to change the overall composition of Maryland’s

congressional delegation to 7 Democrats and 1 Republican

by flipping” one district. Ibid. “[A] decision was made to

go for the Sixth,” ibid., which had been held by a Republi-

can for nearly two decades. To achieve the required equal

population among districts, only about 10,000 residents

needed to be removed from that district. Id., at 498. The

2011 Plan accomplished that by moving roughly 360,000

6 RUCHO v. COMMON CAUSE

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voters out of the Sixth District and moving 350,000 new

voters in. Overall, the Plan reduced the number of regis-

tered Republicans in the Sixth District by about 66,000

and increased the number of registered Democrats by

about 24,000. Id., at 499–501. The map was adopted by a

party-line vote. Id., at 506. It was used in the 2012 elec-

tion and succeeded in flipping the Sixth District. A Demo-

crat has held the seat ever since.

In November 2013, three Maryland voters filed this

lawsuit. They alleged that the 2011 Plan violated the

First Amendment, the Elections Clause, and Article I, §2,

of the Constitution. After considerable procedural skir-

mishing and litigation over preliminary relief, the District

Court entered summary judgment for the plaintiffs. 348

F. Supp. 3d 493. It concluded that the plaintiffs’ claims

were justiciable, and that the Plan violated the First

Amendment by diminishing their “ability to elect their

candidate of choice” because of their party affiliation and

voting history, and by burdening their associational

rights. Id., at 498. On the latter point, the court relied

upon findings that Republicans in the Sixth District “were

burdened in fundraising, attracting volunteers, campaign-

ing, and generating interest in voting in an atmosphere of

general confusion and apathy.” Id., at 524.

The District Court permanently enjoined the State from

using the 2011 Plan and ordered it to promptly adopt a

new plan for the 2020 election. Id., at 525. The defend-

ants appealed directly to this Court under 28 U. S. C.

§1253. We postponed jurisdiction. 586 U. S. ___ (2019).

II

A

Article III of the Constitution limits federal courts to

deciding “Cases” and “Controversies.” We have under-

stood that limitation to mean that federal courts can

address only questions “historically viewed as capable of

Cite as: 588 U. S. ____ (2019) 7

Opinion of the Court

resolution through the judicial process.” Flast v. Cohen,

392 U. S. 83, 95 (1968). In these cases we are asked to

decide an important question of constitutional law. “But

before we do so, we must find that the question is presented

in a ‘case’ or ‘controversy’ that is, in James Madison’s

words, ‘of a Judiciary Nature.’ ” DaimlerChrysler Corp. v.

Cuno, 547 U. S. 332, 342 (2006) (quoting 2 Records of the

Federal Convention of 1787, p. 430 (M. Farrand ed. 1966)).

Chief Justice Marshall famously wrote that it is “the

province and duty of the judicial department to say what

the law is.” Marbury v. Madison, 1 Cranch 137, 177

(1803). Sometimes, however, “the law is that the judicial

department has no business entertaining the claim of

unlawfulness—because the question is entrusted to one of

the political branches or involves no judicially enforceable

rights.” Vieth v. Jubelirer, 541 U. S. 267, 277 (2004) (plu-

rality opinion). In such a case the claim is said to present

a “political question” and to be nonjusticiable—outside the

courts’ competence and therefore beyond the courts’ juris-

diction. Baker v. Carr, 369 U. S. 186, 217 (1962). Among

the political question cases the Court has identified are

those that lack “judicially discoverable and manageable

standards for resolving [them].” Ibid.

Last Term in Gill v. Whitford, we reviewed our partisan

gerrymandering cases and concluded that those cases

“leave unresolved whether such claims may be brought.”

585 U. S., at ___ (slip op., at 13). This Court’s authority to

act, as we said in Gill, is “grounded in and limited by the

necessity of resolving, according to legal principles, a

plaintiff ’s particular claim of legal right.” Ibid. The

question here is whether there is an “appropriate role for

the Federal Judiciary” in remedying the problem of parti-

san gerrymandering—whether such claims are claims of

legal right, resolvable according to legal principles, or

political questions that must find their resolution else-

where. Id., at ___ (slip op., at 8).

8 RUCHO v. COMMON CAUSE

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B

Partisan gerrymandering is nothing new. Nor is frus-

tration with it. The practice was known in the Colonies

prior to Independence, and the Framers were familiar

with it at the time of the drafting and ratification of the

Constitution. See Vieth, 541 U. S., at 274 (plurality opin-

ion). During the very first congressional elections, George

Washington and his Federalist allies accused Patrick

Henry of trying to gerrymander Virginia’s districts against

their candidates—in particular James Madison, who

ultimately prevailed over fellow future President James

Monroe. Hunter, The First Gerrymander? 9 Early Am.

Studies 792–794, 811 (2011). See 5 Writings of Thomas

Jefferson 71 (P. Ford ed. 1895) (Letter to W. Short (Feb. 9,

1789)) (“Henry has so modelled the districts for represent-

atives as to tack Orange [county] to counties where he

himself has great influence that Madison may not be

elected into the lower federal house”).

In 1812, Governor of Massachusetts and future Vice

President Elbridge Gerry notoriously approved congres-

sional districts that the legislature had drawn to aid the

Democratic-Republican Party. The moniker “gerryman-

der” was born when an outraged Federalist newspaper

observed that one of the misshapen districts resembled a

salamander. See Vieth, 541 U. S., at 274 (plurality opin-

ion); E. Griffith, The Rise and Development of the Gerry-

mander 17–19 (1907). “By 1840, the gerrymander was a

recognized force in party politics and was generally at-

tempted in all legislation enacted for the formation of

election districts. It was generally conceded that each

party would attempt to gain power which was not propor-

tionate to its numerical strength.” Id., at 123.

The Framers addressed the election of Representatives

to Congress in the Elections Clause. Art. I, §4, cl. 1. That

provision assigns to state legislatures the power to pre-

scribe the “Times, Places and Manner of holding Elec-

Cite as: 588 U. S. ____ (2019) 9

Opinion of the Court

tions” for Members of Congress, while giving Congress the

power to “make or alter” any such regulations. Whether to

give that supervisory authority to the National Govern-

ment was debated at the Constitutional Convention.

When those opposed to such congressional oversight

moved to strike the relevant language, Madison came to

its defense:

“[T]he State Legislatures will sometimes fail or refuse

to consult the common interest at the expense of their

local coveniency or prejudices. . . . Whenever the

State Legislatures had a favorite measure to carry,

they would take care so to mould their regulations as

to favor the candidates they wished to succeed.” 2

Records of the Federal Convention of 1787, at 240–

241.

During the subsequent fight for ratification, the provi-

sion remained a subject of debate. Antifederalists predicted

that Congress’s power under the Elections Clause would

allow Congress to make itself “omnipotent,” setting the

“time” of elections as never or the “place” in difficult to

reach corners of the State. Federalists responded that,

among other justifications, the revisionary power was

necessary to counter state legislatures set on undermining

fair representation, including through malapportionment.

M. Klarman, The Framers’ Coup: The Making of the United

States Constitution 340–342 (2016). The Federalists were,

for example, concerned that newly developing population

centers would be deprived of their proper electoral weight,

as some cities had been in Great Britain. See 6 The Doc-

umentary History of the Ratification of the Constitution:

Massachusetts 1278–1279 (J. Kaminski & G. Saladino

eds. 2000).

Congress has regularly exercised its Elections Clause

power, including to address partisan gerrymandering.

The Apportionment Act of 1842, which required single-

10 RUCHO v. COMMON CAUSE

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member districts for the first time, specified that those

districts be “composed of contiguous territory,” Act of June

25, 1842, ch. 47, 5 Stat. 491, in “an attempt to forbid the

practice of the gerrymander,” Griffith, supra, at 12. Later

statutes added requirements of compactness and equality

of population. Act of Jan. 16, 1901, ch. 93, §3, 31 Stat.

733; Act of Feb. 2, 1872, ch. 11, §2, 17 Stat. 28. (Only the

single member district requirement remains in place

today. 2 U. S. C. §2c.) See Vieth, 541 U. S., at 276 (plurality

opinion). Congress also used its Elections Clause power in

1870, enacting the first comprehensive federal statute

dealing with elections as a way to enforce the Fifteenth

Amendment. Force Act of 1870, ch. 114, 16 Stat. 140.

Starting in the 1950s, Congress enacted a series of laws to

protect the right to vote through measures such as the

suspension of literacy tests and the prohibition of English-

only elections. See, e.g., 52 U. S. C. §10101 et seq.

Appellants suggest that, through the Elections Clause,

the Framers set aside electoral issues such as the one

before us as questions that only Congress can resolve. See

Baker, 369 U. S., at 217. We do not agree. In two areas—

one-person, one-vote and racial gerrymandering—our

cases have held that there is a role for the courts with

respect to at least some issues that could arise from a

State’s drawing of congressional districts. See Wesberry v.

Sanders, 376 U. S. 1 (1964); Shaw v. Reno, 509 U. S. 630

(1993) (Shaw I ).

But the history is not irrelevant. The Framers were

aware of electoral districting problems and considered

what to do about them. They settled on a characteristic

approach, assigning the issue to the state legislatures,

expressly checked and balanced by the Federal Congress.

As Alexander Hamilton explained, “it will . . . not be de-

nied that a discretionary power over elections ought to

exist somewhere. It will, I presume, be as readily conceded

that there were only three ways in which this power could

Cite as: 588 U. S. ____ (2019) 11

Opinion of the Court

have been reasonably modified and disposed: that it must

either have been lodged wholly in the national legislature,

or wholly in the State legislatures, or primarily in the

latter, and ultimately in the former.” The Federalist No.

59, p. 362 (C. Rossiter ed. 1961). At no point was there a

suggestion that the federal courts had a role to play. Nor

was there any indication that the Framers had ever heard

of courts doing such a thing.

C

Courts have nevertheless been called upon to resolve a

variety of questions surrounding districting. Early on,

doubts were raised about the competence of the federal

courts to resolve those questions. See Wood v. Broom, 287

U. S. 1 (1932); Colegrove v. Green, 328 U. S. 549 (1946).

In the leading case of Baker v. Carr, voters in Tennessee

complained that the State’s districting plan for state

representatives “debase[d]” their votes, because the plan

was predicated on a 60-year-old census that no longer

reflected the distribution of population in the State. The

plaintiffs argued that votes of people in overpopulated

districts held less value than those of people in less-

populated districts, and that this inequality violated the

Equal Protection Clause of the Fourteenth Amendment.

The District Court dismissed the action on the ground that

the claim was not justiciable, relying on this Court’s prec-

edents, including Colegrove. Baker v. Carr, 179 F. Supp.

824, 825, 826 (MD Tenn. 1959). This Court reversed. It

identified various considerations relevant to determining

whether a claim is a nonjusticiable political question,

including whether there is “a lack of judicially discover-

able and manageable standards for resolving it.” 369 U. S.,

at 217. The Court concluded that the claim of population

inequality among districts did not fall into that category,

because such a claim could be decided under basic equal

protection principles. Id., at 226. In Wesberry v. Sanders,

12 RUCHO v. COMMON CAUSE

Opinion of the Court

the Court extended its ruling to malapportionment of

congressional districts, holding that Article I, §2, required

that “one man’s vote in a congressional election is to be

worth as much as another’s.” 376 U. S., at 8.

Another line of challenges to districting plans has fo-

cused on race. Laws that explicitly discriminate on the

basis of race, as well as those that are race neutral on

their face but are unexplainable on grounds other than

race, are of course presumptively invalid. The Court

applied those principles to electoral boundaries in Gomil-

lion v. Lightfoot, concluding that a challenge to an “un-

couth twenty-eight sided” municipal boundary line that

excluded black voters from city elections stated a constitu-

tional claim. 364 U. S. 339, 340 (1960). In Wright v.

Rockefeller, 376 U. S. 52 (1964), the Court extended the

reasoning of Gomillion to congressional districting. See

Shaw I, 509 U. S., at 645.

Partisan gerrymandering claims have proved far more

difficult to adjudicate. The basic reason is that, while it is

illegal for a jurisdiction to depart from the one-person,

one-vote rule, or to engage in racial discrimination in

districting, “a jurisdiction may engage in constitutional

political gerrymandering.” Hunt v. Cromartie, 526 U. S.

541, 551 (1999) (citing Bush v. Vera, 517 U. S. 952, 968

(1996); Shaw v. Hunt, 517 U. S. 899, 905 (1996) (Shaw II );

Miller v. Johnson, 515 U. S. 900, 916 (1995); Shaw I, 509

U. S., at 646). See also Gaffney v. Cummings, 412 U. S.

735, 753 (1973) (recognizing that “[p]olitics and political

considerations are inseparable from districting and

apportionment”).

To hold that legislators cannot take partisan interests

into account when drawing district lines would essentially

countermand the Framers’ decision to entrust districting

to political entities. The “central problem” is not deter-

mining whether a jurisdiction has engaged in partisan

gerrymandering. It is “determining when political gerry-

Cite as: 588 U. S. ____ (2019) 13

Opinion of the Court

mandering has gone too far.” Vieth, 541 U. S., at 296

(plurality opinion). See League of United Latin American

Citizens v. Perry, 548 U. S. 399, 420 (2006) (LULAC) (opin-

ion of Kennedy, J.) (difficulty is “providing a standard for

deciding how much partisan dominance is too much”).

We first considered a partisan gerrymandering claim in

Gaffney v. Cummings in 1973. There we rejected an equal

protection challenge to Connecticut’s redistricting plan,

which “aimed at a rough scheme of proportional represen-

tation of the two major political parties” by “wiggl[ing] and

joggl[ing] boundary lines” to create the appropriate num-

ber of safe seats for each party. 412 U. S., at 738, 752,

n. 18 (internal quotation marks omitted). In upholding

the State’s plan, we reasoned that districting “inevitably

has and is intended to have substantial political conse-

quences.” Id., at 753.

Thirteen years later, in Davis v. Bandemer, we ad-

dressed a claim that Indiana Republicans had cracked and

packed Democrats in violation of the Equal Protection

Clause. 478 U. S. 109, 116–117 (1986) (plurality opinion).

A majority of the Court agreed that the case was justicia-

ble, but the Court splintered over the proper standard to

apply. Four Justices would have required proof of “inten-

tional discrimination against an identifiable political

group and an actual discriminatory effect on that group.”

Id., at 127. Two Justices would have focused on “whether

the boundaries of the voting districts have been distorted

deliberately and arbitrarily to achieve illegitimate ends.”

Id., at 165 (Powell, J., concurring in part and dissenting in

part). Three Justices, meanwhile, would have held that

the Equal Protection Clause simply “does not supply

judicially manageable standards for resolving purely

political gerrymandering claims.” Id., at 147 (O’Connor,

J., concurring in judgment). At the end of the day, there

was “no ‘Court’ for a standard that properly should be

applied in determining whether a challenged redistricting

14 RUCHO v. COMMON CAUSE

Opinion of the Court

plan is an unconstitutional partisan political gerryman-

der.” Id., at 185, n. 25 (opinion of Powell, J.). In any

event, the Court held that the plaintiffs had failed to show

that the plan violated the Constitution.

Eighteen years later, in Vieth, the plaintiffs complained

that Pennsylvania’s legislature “ignored all traditional

redistricting criteria, including the preservation of local

government boundaries,” in order to benefit Republican

congressional candidates. 541 U. S., at 272–273 (plurality

opinion) (brackets omitted). Justice Scalia wrote for a

four-Justice plurality. He would have held that the plain-

tiffs’ claims were nonjusticiable because there was no

“judicially discernible and manageable standard” for

deciding them. Id., at 306. Justice Kennedy, concurring

in the judgment, noted “the lack of comprehensive and

neutral principles for drawing electoral boundaries [and]

the absence of rules to limit and confine judicial interven-

tion.” Id., at 306–307. He nonetheless left open the possi-

bility that “in another case a standard might emerge.” Id.,

at 312. Four Justices dissented.

In LULAC, the plaintiffs challenged a mid-decade redis-

tricting map approved by the Texas Legislature. Once

again a majority of the Court could not find a justiciable

standard for resolving the plaintiffs’ partisan gerryman-

dering claims. See 548 U. S., at 414 (noting that the

“disagreement over what substantive standard to apply”

that was evident in Bandemer “persists”).

As we summed up last Term in Gill, our “considerable

efforts in Gaffney, Bandemer, Vieth, and LULAC leave

unresolved whether . . . claims [of legal right] may be

brought in cases involving allegations of partisan gerry-

mandering.” 585 U. S., at ___ (slip op., at 13). Two

“threshold questions” remained: standing, which we ad-

dressed in Gill, and “whether [such] claims are justicia-

ble.” Ibid.

Cite as: 588 U. S. ____ (2019) 15

Opinion of the Court

III

A

In considering whether partisan gerrymandering claims

are justiciable, we are mindful of Justice Kennedy’s coun-

sel in Vieth: Any standard for resolving such claims must

be grounded in a “limited and precise rationale” and be

“clear, manageable, and politically neutral.” 541 U. S., at

306–308 (opinion concurring in judgment). An important

reason for those careful constraints is that, as a Justice

with extensive experience in state and local politics put it,

“[t]he opportunity to control the drawing of electoral

boundaries through the legislative process of apportion-

ment is a critical and traditional part of politics in the

United States.” Bandemer, 478 U. S., at 145 (opinion of

O’Connor, J.). See Gaffney, 412 U. S., at 749 (observing

that districting implicates “fundamental ‘choices about the

nature of representation’ ” (quoting Burns v. Richardson,

384 U. S. 73, 92 (1966))). An expansive standard requiring

“the correction of all election district lines drawn for parti-

san reasons would commit federal and state courts to

unprecedented intervention in the American political

process,” Vieth, 541 U. S., at 306 (opinion of Kennedy, J.).

As noted, the question is one of degree: How to

“provid[e] a standard for deciding how much partisan

dominance is too much.” LULAC, 548 U. S., at 420 (opin-

ion of Kennedy, J.). And it is vital in such circumstances

that the Court act only in accord with especially clear

standards: “With uncertain limits, intervening courts—

even when proceeding with best intentions—would risk

assuming political, not legal, responsibility for a process

that often produces ill will and distrust.” Vieth, 541 U. S.,

at 307 (opinion of Kennedy, J.). If federal courts are to

“inject [themselves] into the most heated partisan issues”

by adjudicating partisan gerrymandering claims,

Bandemer, 478 U. S., at 145 (opinion of O’Connor, J.), they

must be armed with a standard that can reliably differen-

16 RUCHO v. COMMON CAUSE

Opinion of the Court

tiate unconstitutional from “constitutional political gerry-

mandering.” Cromartie, 526 U. S., at 551.

B

Partisan gerrymandering claims rest on an instinct that

groups with a certain level of political support should

enjoy a commensurate level of political power and influ-

ence. Explicitly or implicitly, a districting map is alleged

to be unconstitutional because it makes it too difficult for

one party to translate statewide support into seats in the

legislature. But such a claim is based on a “norm that

does not exist” in our electoral system—“statewide elec-

tions for representatives along party lines.” Bandemer,

478 U. S., at 159 (opinion of O’Connor, J.).

Partisan gerrymandering claims invariably sound in a

desire for proportional representation. As Justice

O’Connor put it, such claims are based on “a conviction

that the greater the departure from proportionality, the

more suspect an apportionment plan becomes.” Ibid.

“Our cases, however, clearly foreclose any claim that the

Constitution requires proportional representation or that

legislatures in reapportioning must draw district lines to

come as near as possible to allocating seats to the contend-

ing parties in proportion to what their anticipated

statewide vote will be.” Id., at 130 (plurality opinion). See

Mobile v. Bolden, 446 U. S. 55, 75–76 (1980) (plurality

opinion) (“The Equal Protection Clause of the Fourteenth

Amendment does not require proportional representation

as an imperative of political organization.”).

The Founders certainly did not think proportional rep-

resentation was required. For more than 50 years after

ratification of the Constitution, many States elected their

congressional representatives through at-large or “general

ticket” elections. Such States typically sent single-party

delegations to Congress. See E. Engstrom, Partisan Gerry-

mandering and the Construction of American Democracy

Cite as: 588 U. S. ____ (2019) 17

Opinion of the Court

43–51 (2013). That meant that a party could garner nearly

half of the vote statewide and wind up without any seats

in the congressional delegation. The Whigs in Alabama

suffered that fate in 1840: “their party garnered 43 per-

cent of the statewide vote, yet did not receive a single

seat.” Id., at 48. When Congress required single-member

districts in the Apportionment Act of 1842, it was not

out of a general sense of fairness, but instead a

(mis)calculation by the Whigs that such a change would

improve their electoral prospects. Id., at 43–44.

Unable to claim that the Constitution requires propor-

tional representation outright, plaintiffs inevitably ask the

courts to make their own political judgment about how

much representation particular political parties deserve—

based on the votes of their supporters—and to rearrange

the challenged districts to achieve that end. But federal

courts are not equipped to apportion political power as a

matter of fairness, nor is there any basis for concluding

that they were authorized to do so. As Justice Scalia put

it for the plurality in Vieth:

“ ‘Fairness’ does not seem to us a judicially manage-

able standard. . . . Some criterion more solid and more

demonstrably met than that seems to us necessary to

enable the state legislatures to discern the limits of

their districting discretion, to meaningfully constrain

the discretion of the courts, and to win public ac-

ceptance for the courts’ intrusion into a process that is

the very foundation of democratic decisionmaking.”

541 U. S., at 291.

The initial difficulty in settling on a “clear, manageable

and politically neutral” test for fairness is that it is not

even clear what fairness looks like in this context. There

is a large measure of “unfairness” in any winner-take-all

system. Fairness may mean a greater number of competi-

tive districts. Such a claim seeks to undo packing and

18 RUCHO v. COMMON CAUSE

Opinion of the Court

cracking so that supporters of the disadvantaged party

have a better shot at electing their preferred candidates.

But making as many districts as possible more competi-

tive could be a recipe for disaster for the disadvantaged

party. As Justice White has pointed out, “[i]f all or most of

the districts are competitive . . . even a narrow statewide

preference for either party would produce an overwhelm-

ing majority for the winning party in the state legisla-

ture.” Bandemer, 478 U. S., at 130 (plurality opinion).

On the other hand, perhaps the ultimate objective of a

“fairer” share of seats in the congressional delegation is

most readily achieved by yielding to the gravitational pull

of proportionality and engaging in cracking and packing,

to ensure each party its “appropriate” share of “safe” seats.

See id., at 130–131 (“To draw district lines to maximize

the representation of each major party would require

creating as many safe seats for each party as the demo-

graphic and predicted political characteristics of the State

would permit.”); Gaffney, 412 U. S., at 735–738. Such an

approach, however, comes at the expense of competitive

districts and of individuals in districts allocated to the

opposing party.

Or perhaps fairness should be measured by adherence

to “traditional” districting criteria, such as maintaining

political subdivisions, keeping communities of interest

together, and protecting incumbents. See Brief for Bipar-

tisan Group of Current and Former Members of the House

of Representatives as Amici Curiae; Brief for Professor

Wesley Pegden et al. as Amici Curiae in No. 18–422. But

protecting incumbents, for example, enshrines a particular

partisan distribution. And the “natural political geogra-

phy” of a State—such as the fact that urban electoral

districts are often dominated by one political party—can

itself lead to inherently packed districts. As Justice Ken-

nedy has explained, traditional criteria such as compact-

ness and contiguity “cannot promise political neutrality

Cite as: 588 U. S. ____ (2019) 19

Opinion of the Court

when used as the basis for relief. Instead, it seems, a

decision under these standards would unavoidably have

significant political effect, whether intended or not.”

Vieth, 541 U. S., at 308–309 (opinion concurring in judg-

ment). See id., at 298 (plurality opinion) (“[P]acking and

cracking, whether intentional or no, are quite consistent

with adherence to compactness and respect for political

subdivision lines”).

Deciding among just these different visions of fairness

(you can imagine many others) poses basic questions that

are political, not legal. There are no legal standards dis-

cernible in the Constitution for making such judgments,

let alone limited and precise standards that are clear,

manageable, and politically neutral. Any judicial decision

on what is “fair” in this context would be an “unmoored

determination” of the sort characteristic of a political

question beyond the competence of the federal courts.

Zivotofsky v. Clinton, 566 U. S. 189, 196 (2012).

And it is only after determining how to define fairness

that you can even begin to answer the determinative

question: “How much is too much?” At what point does

permissible partisanship become unconstitutional? If

compliance with traditional districting criteria is the

fairness touchstone, for example, how much deviation

from those criteria is constitutionally acceptable and how

should mapdrawers prioritize competing criteria? Should

a court “reverse gerrymander” other parts of a State to

counteract “natural” gerrymandering caused, for example,

by the urban concentration of one party? If a districting

plan protected half of the incumbents but redistricted the

rest into head to head races, would that be constitutional?

A court would have to rank the relative importance of

those traditional criteria and weigh how much deviation

from each to allow.

If a court instead focused on the respective number of

seats in the legislature, it would have to decide the ideal

20 RUCHO v. COMMON CAUSE

Opinion of the Court

number of seats for each party and determine at what

point deviation from that balance went too far. If a 5–3

allocation corresponds most closely to statewide vote

totals, is a 6–2 allocation permissible, given that legisla-

tures have the authority to engage in a certain degree of

partisan gerrymandering? Which seats should be packed

and which cracked? Or if the goal is as many competitive

districts as possible, how close does the split need to be for

the district to be considered competitive? Presumably not

all districts could qualify, so how to choose? Even assum-

ing the court knew which version of fairness to be looking

for, there are no discernible and manageable standards for

deciding whether there has been a violation. The ques-

tions are “unguided and ill suited to the development of

judicial standards,” Vieth, 541 U. S., at 296 (plurality

opinion), and “results from one gerrymandering case to the

next would likely be disparate and inconsistent,” id., at

308 (opinion of Kennedy, J.).

Appellees contend that if we can adjudicate one-person,

one-vote claims, we can also assess partisan gerrymander-

ing claims. But the one-person, one-vote rule is relatively

easy to administer as a matter of math. The same cannot

be said of partisan gerrymandering claims, because the

Constitution supplies no objective measure for assessing

whether a districting map treats a political party fairly. It

hardly follows from the principle that each person must

have an equal say in the election of representatives that a

person is entitled to have his political party achieve repre-

sentation in some way commensurate to its share of

statewide support.

More fundamentally, “vote dilution” in the one-person,

one-vote cases refers to the idea that each vote must carry

equal weight. In other words, each representative must be

accountable to (approximately) the same number of con-

stituents. That requirement does not extend to political

parties. It does not mean that each party must be influen-

Cite as: 588 U. S. ____ (2019) 21

Opinion of the Court

tial in proportion to its number of supporters. As we

stated unanimously in Gill, “this Court is not responsible

for vindicating generalized partisan preferences. The

Court’s constitutionally prescribed role is to vindicate the

individual rights of the people appearing before it.” 585

U. S., at ___ (slip op., at 21). See also Bandemer, 478

U. S., at 150 (opinion of O’Connor, J.) (“[T]he Court has

not accepted the argument that an ‘asserted entitlement

to group representation’ . . . can be traced to the one per-

son, one vote principle.” (quoting Bolden, 446 U. S., at

77)).*

Nor do our racial gerrymandering cases provide an

appropriate standard for assessing partisan gerrymander-

ing. “[N]othing in our case law compels the conclusion

that racial and political gerrymanders are subject to pre-

cisely the same constitutional scrutiny. In fact, our coun-

try’s long and persistent history of racial discrimination in

voting—as well as our Fourteenth Amendment jurispru-

dence, which always has reserved the strictest scrutiny for

discrimination on the basis of race—would seem to compel

the opposite conclusion.” Shaw I, 509 U. S., at 650 (cita-

tion omitted). Unlike partisan gerrymandering claims, a

racial gerrymandering claim does not ask for a fair share

of political power and influence, with all the justiciability

conundrums that entails. It asks instead for the elimina-

tion of a racial classification. A partisan gerrymandering

claim cannot ask for the elimination of partisanship.

——————

* The dissent’s observation that the Framers viewed political parties

“with deep suspicion, as fomenters of factionalism and symptoms of

disease in the body politic” post, at 9, n. 1 (opinion of KAGAN, J.) (inter-

nal quotation marks and alteration omitted), is exactly right. Its

inference from that fact is exactly wrong. The Framers would have

been amazed at a constitutional theory that guarantees a certain

degree of representation to political parties.

22 RUCHO v. COMMON CAUSE

Opinion of the Court

IV

Appellees and the dissent propose a number of “tests”

for evaluating partisan gerrymandering claims, but none

meets the need for a limited and precise standard that is

judicially discernible and manageable. And none provides

a solid grounding for judges to take the extraordinary step

of reallocating power and influence between political

parties.

A

The Common Cause District Court concluded that all

but one of the districts in North Carolina’s 2016 Plan

violated the Equal Protection Clause by intentionally

diluting the voting strength of Democrats. 318 F. Supp.

3d, at 923. In reaching that result the court first required

the plaintiffs to prove “that a legislative mapdrawer’s

predominant purpose in drawing the lines of a particular

district was to ‘subordinate adherents of one political

party and entrench a rival party in power.’ ” Id., at 865

(quoting Arizona State Legislature v. Arizona Independent

Redistricting Comm’n, 576 U. S. ___, ___ (2015) (slip op.,

at 1)). The District Court next required a showing “that

the dilution of the votes of supporters of a disfavored party

in a particular district—by virtue of cracking or packing—

is likely to persist in subsequent elections such that an

elected representative from the favored party in the dis-

trict will not feel a need to be responsive to constituents

who support the disfavored party.” 318 F. Supp. 3d, at

867. Finally, after a prima facie showing of partisan vote

dilution, the District Court shifted the burden to the de-

fendants to prove that the discriminatory effects are “at-

tributable to a legitimate state interest or other neutral

explanation.” Id., at 868.

The District Court’s “predominant intent” prong is

borrowed from the racial gerrymandering context. In

racial gerrymandering cases, we rely on a “predominant

Cite as: 588 U. S. ____ (2019) 23

Opinion of the Court

intent” inquiry to determine whether race was, in fact, the

reason particular district boundaries were drawn the way

they were. If district lines were drawn for the purpose of

separating racial groups, then they are subject to strict

scrutiny because “race-based decisionmaking is inherently

suspect.” Miller, 515 U. S., at 915. See Bush, 517 U. S., at

959 (principal opinion). But determining that lines were

drawn on the basis of partisanship does not indicate that

the districting was improper. A permissible intent—

securing partisan advantage—does not become constitu-

tionally impermissible, like racial discrimination, when

that permissible intent “predominates.”

The District Court tried to limit the reach of its test by

requiring plaintiffs to show, in addition to predominant

partisan intent, that vote dilution “is likely to persist” to

such a degree that the elected representative will feel free

to ignore the concerns of the supporters of the minority

party. 318 F. Supp. 3d, at 867. But “[t]o allow district

courts to strike down apportionment plans on the basis of

their prognostications as to the outcome of future elections

. . . invites ‘findings’ on matters as to which neither judges

nor anyone else can have any confidence.” Bandemer, 478

U. S., at 160 (opinion of O’Connor, J.). See LULAC, 548

U. S., at 420 (opinion of Kennedy, J.) (“[W]e are wary of

adopting a constitutional standard that invalidates a map

based on unfair results that would occur in a hypothetical

state of affairs.”). And the test adopted by the Common

Cause court requires a far more nuanced prediction than

simply who would prevail in future political contests.

Judges must forecast with unspecified certainty whether a

prospective winner will have a margin of victory sufficient

to permit him to ignore the supporters of his defeated

opponent (whoever that may turn out to be). Judges not

only have to pick the winner—they have to beat the point

spread.

The appellees assure us that “the persistence of a

24 RUCHO v. COMMON CAUSE

Opinion of the Court

party’s advantage may be shown through sensitivity test-

ing: probing how a plan would perform under other plau-

sible electoral conditions.” Brief for Appellees League of

Women Voters of North Carolina et al. in No. 18–422,

p. 55. See also 318 F. Supp. 3d, at 885. Experience proves

that accurately predicting electoral outcomes is not so

simple, either because the plans are based on flawed

assumptions about voter preferences and behavior or

because demographics and priorities change over time. In

our two leading partisan gerrymandering cases them-

selves, the predictions of durability proved to be dramati-

cally wrong. In 1981, Republicans controlled both houses

of the Indiana Legislature as well as the governorship.

Democrats challenged the state legislature districting map

enacted by the Republicans. This Court in Bandemer

rejected that challenge, and just months later the Demo-

crats increased their share of House seats in the 1986

elections. Two years later the House was split 50–50

between Democrats and Republicans, and the Democrats

took control of the chamber in 1990. Democrats also

challenged the Pennsylvania congressional districting

plan at issue in Vieth. Two years after that challenge

failed, they gained four seats in the delegation, going from

a 12–7 minority to an 11–8 majority. At the next election,

they flipped another Republican seat.

Even the most sophisticated districting maps cannot

reliably account for some of the reasons voters prefer one

candidate over another, or why their preferences may

change. Voters elect individual candidates in individual

districts, and their selections depend on the issues that

matter to them, the quality of the candidates, the tone of

the candidates’ campaigns, the performance of an incum-

bent, national events or local issues that drive voter turn-

out, and other considerations. Many voters split their

tickets. Others never register with a political party, and

vote for candidates from both major parties at different

Cite as: 588 U. S. ____ (2019) 25

Opinion of the Court

points during their lifetimes. For all of those reasons,

asking judges to predict how a particular districting map

will perform in future elections risks basing constitutional

holdings on unstable ground outside judicial expertise.

It is hard to see what the District Court’s third prong—

providing the defendant an opportunity to show that the

discriminatory effects were due to a “legitimate redistrict-

ing objective”—adds to the inquiry. 318 F. Supp. 3d, at

861. The first prong already requires the plaintiff to prove

that partisan advantage predominates. Asking whether a

legitimate purpose other than partisanship was the moti-

vation for a particular districting map just restates the

question.

B

The District Courts also found partisan gerrymandering

claims justiciable under the First Amendment, coalescing

around a basic three-part test: proof of intent to burden

individuals based on their voting history or party affilia-

tion; an actual burden on political speech or associational

rights; and a causal link between the invidious intent and

actual burden. See Common Cause, 318 F. Supp. 3d, at

929; Benisek, 348 F. Supp. 3d, at 522. Both District

Courts concluded that the districting plans at issue violated

the plaintiffs’ First Amendment right to association. The

District Court in North Carolina relied on testimony that,

after the 2016 Plan was put in place, the plaintiffs faced

“difficulty raising money, attracting candidates, and mobi-

lizing voters to support the political causes and issues

such Plaintiffs sought to advance.” 318 F. Supp. 3d, at

932. Similarly, the District Court in Maryland examined

testimony that “revealed a lack of enthusiasm, indiffer-

ence to voting, a sense of disenfranchisement, a sense of

disconnection, and confusion,” and concluded that Repub-

licans in the Sixth District “were burdened in fundraising,

attracting volunteers, campaigning, and generating inter-

26 RUCHO v. COMMON CAUSE

Opinion of the Court

est in voting.” 348 F. Supp. 3d, at 523–524.

To begin, there are no restrictions on speech, associa-

tion, or any other First Amendment activities in the dis-

tricting plans at issue. The plaintiffs are free to engage in

those activities no matter what the effect of a plan may be

on their district.

The plaintiffs’ argument is that partisanship in district-

ing should be regarded as simple discrimination against

supporters of the opposing party on the basis of political

viewpoint. Under that theory, any level of partisanship in

districting would constitute an infringement of their First

Amendment rights. But as the Court has explained, “[i]t

would be idle . . . to contend that any political considera-

tion taken into account in fashioning a reapportionment

plan is sufficient to invalidate it.” Gaffney, 412 U. S., at

752. The First Amendment test simply describes the act

of districting for partisan advantage. It provides no

standard for determining when partisan activity goes too

far.

As for actual burden, the slight anecdotal evidence

found sufficient by the District Courts in these cases

shows that this too is not a serious standard for separating

constitutional from unconstitutional partisan gerryman-

dering. The District Courts relied on testimony about

difficulty drumming up volunteers and enthusiasm. How

much of a decline in voter engagement is enough to consti-

tute a First Amendment burden? How many door knocks

must go unanswered? How many petitions unsigned?

How many calls for volunteers unheeded? The Common

Cause District Court held that a partisan gerrymander

places an unconstitutional burden on speech if it has more

than a “de minimis” “chilling effect or adverse impact” on

any First Amendment activity. 318 F. Supp. 3d, at 930.

The court went on to rule that there would be an adverse

effect “even if the speech of [the plaintiffs] was not in fact

chilled”; it was enough that the districting plan “makes it

Cite as: 588 U. S. ____ (2019) 27

Opinion of the Court

easier for supporters of Republican candidates to translate

their votes into seats,” thereby “enhanc[ing] the[ir] rela-

tive voice.” Id., at 933 (internal quotation marks omitted).

These cases involve blatant examples of partisanship

driving districting decisions. But the First Amendment

analysis below offers no “clear” and “manageable” way of

distinguishing permissible from impermissible partisan

motivation. The Common Cause court embraced that

conclusion, observing that “a judicially manageable

framework for evaluating partisan gerrymandering claims

need not distinguish an ‘acceptable’ level of partisan ger-

rymandering from ‘excessive’ partisan gerrymandering”

because “the Constitution does not authorize state redis-

tricting bodies to engage in such partisan gerrymander-

ing.” Id., at 851. The decisions below prove the prediction

of the Vieth plurality that “a First Amendment claim, if it

were sustained, would render unlawful all consideration of

political affiliation in districting,” 541 U. S., at 294, con-

trary to our established precedent.

C

The dissent proposes using a State’s own districting

criteria as a neutral baseline from which to measure how

extreme a partisan gerrymander is. The dissent would

have us line up all the possible maps drawn using those

criteria according to the partisan distribution they would

produce. Distance from the “median” map would indicate

whether a particular districting plan harms supporters of

one party to an unconstitutional extent. Post, at 18–19, 25

(opinion of KAGAN, J.).

As an initial matter, it does not make sense to use crite-

ria that will vary from State to State and year to year as

the baseline for determining whether a gerrymander

violates the Federal Constitution. The degree of partisan

advantage that the Constitution tolerates should not turn

on criteria offered by the gerrymanderers themselves. It

28 RUCHO v. COMMON CAUSE

Opinion of the Court

is easy to imagine how different criteria could move the

median map toward different partisan distributions. As a

result, the same map could be constitutional or not de-

pending solely on what the mapmakers said they set out to

do. That possibility illustrates that the dissent’s proposed

constitutional test is indeterminate and arbitrary.

Even if we were to accept the dissent’s proposed base-

line, it would return us to “the original unanswerable

question (How much political motivation and effect is too

much?).” Vieth, 541 U. S., at 296–297 (plurality opinion).

Would twenty percent away from the median map be

okay? Forty percent? Sixty percent? Why or why not?

(We appreciate that the dissent finds all the unanswerable

questions annoying, see post, at 22, but it seems a useful

way to make the point.) The dissent’s answer says it all:

“This much is too much.” Post, at 25–26. That is not even

trying to articulate a standard or rule.

The dissent argues that there are other instances in law

where matters of degree are left to the courts. See post, at

27. True enough. But those instances typically involve

constitutional or statutory provisions or common law

confining and guiding the exercise of judicial discretion.

For example, the dissent cites the need to determine “sub-

stantial anticompetitive effect[s]” in antitrust law. Post,

at 27 (citing Ohio v. American Express Co., 585 U. S. ___

(2018)). That language, however, grew out of the Sherman

Act, understood from the beginning to have its “origin in

the common law” and to be “familiar in the law of this

country prior to and at the time of the adoption of the

[A]ct.” Standard Oil Co. of N. J. v. United States, 221

U. S. 1, 51 (1911). Judges began with a significant body of

law about what constituted a legal violation. In other

cases, the pertinent statutory terms draw meaning from

related provisions or statutory context. Here, on the other

hand, the Constitution provides no basis whatever to

guide the exercise of judicial discretion. Common experi-

Cite as: 588 U. S. ____ (2019) 29

Opinion of the Court

ence gives content to terms such as “substantial risk” or

“substantial harm,” but the same cannot be said of sub-

stantial deviation from a median map. There is no way to

tell whether the prohibited deviation from that map

should kick in at 25 percent or 75 percent or some other

point. The only provision in the Constitution that specifi-

cally addresses the matter assigns it to the political

branches. See Art. I, §4, cl. 1.

D

The North Carolina District Court further concluded

that the 2016 Plan violated the Elections Clause and

Article I, §2. We are unconvinced by that novel approach.

Article I, §2, provides that “[t]he House of Representa-

tives shall be composed of Members chosen every second

Year by the People of the several States.” The Elections

Clause provides that “[t]he Times, Places and Manner of

holding Elections for Senators and Representatives, shall

be prescribed in each State by the Legislature thereof; but

the Congress may at any time by Law make or alter such

Regulations, except as to the Places of chusing Senators.”

Art. I, §4, cl. 1.

The District Court concluded that the 2016 Plan exceeded

the North Carolina General Assembly’s Elections Clause

authority because, among other reasons, “the Elections

Clause did not empower State legislatures to disfavor the

interests of supporters of a particular candidate or party

in drawing congressional districts.” 318 F. Supp. 3d, at

937. The court further held that partisan gerrymandering

infringes the right of “the People” to select their repre-

sentatives. Id., at 938–940. Before the District Court’s

decision, no court had reached a similar conclusion. In

fact, the plurality in Vieth concluded—without objection

from any other Justice—that neither §2 nor §4 of Article I

“provides a judicially enforceable limit on the political

considerations that the States and Congress may take into

30 RUCHO v. COMMON CAUSE

Opinion of the Court

account when districting.” 541 U. S., at 305.

The District Court nevertheless asserted that partisan

gerrymanders violate “the core principle of [our] republi-

can government” preserved in Art. I, §2, “namely, that the

voters should choose their representatives, not the other

way around.” 318 F. Supp. 3d, at 940 (quoting Arizona

State Legislature, 576 U. S., at ___ (slip op., at 35); inter-

nal quotation marks omitted; alteration in original). That

seems like an objection more properly grounded in the

Guarantee Clause of Article IV, §4, which “guarantee[s] to

every State in [the] Union a Republican Form of Govern-

ment.” This Court has several times concluded, however,

that the Guarantee Clause does not provide the basis for a

justiciable claim. See, e.g., Pacific States Telephone &

Telegraph Co. v. Oregon, 223 U. S. 118 (1912).

V

Excessive partisanship in districting leads to results

that reasonably seem unjust. But the fact that such ger-

rymandering is “incompatible with democratic principles,”

Arizona State Legislature, 576 U. S., at ___ (slip op., at 1),

does not mean that the solution lies with the federal judi-

ciary. We conclude that partisan gerrymandering claims

present political questions beyond the reach of the federal

courts. Federal judges have no license to reallocate politi-

cal power between the two major political parties, with no

plausible grant of authority in the Constitution, and no

legal standards to limit and direct their decisions.

“[J]udicial action must be governed by standard, by rule,”

and must be “principled, rational, and based upon rea-

soned distinctions” found in the Constitution or laws.

Vieth, 541 U. S., at 278, 279 (plurality opinion). Judicial

review of partisan gerrymandering does not meet those

basic requirements.

Today the dissent essentially embraces the argument

that the Court unanimously rejected in Gill: “this Court

Cite as: 588 U. S. ____ (2019) 31

Opinion of the Court

can address the problem of partisan gerrymandering

because it must.” 585 U. S., at ___ (slip op., at 12). That is

not the test of our authority under the Constitution; that

document instead “confines the federal courts to a properly

judicial role.” Town of Chester v. Laroe Estates, Inc., 581

U. S. ___, ___ (2017) (slip op., at 4).

What the appellees and dissent seek is an unprecedented

expansion of judicial power. We have never struck down a

partisan gerrymander as unconstitutional—despite vari-

ous requests over the past 45 years. The expansion of

judicial authority would not be into just any area of con-

troversy, but into one of the most intensely partisan as-

pects of American political life. That intervention would

be unlimited in scope and duration—it would recur over

and over again around the country with each new round of

districting, for state as well as federal representatives.

Consideration of the impact of today’s ruling on democratic

principles cannot ignore the effect of the unelected and

politically unaccountable branch of the Federal Govern-

ment assuming such an extraordinary and unprecedented

role. See post, at 32–33.

Our conclusion does not condone excessive partisan

gerrymandering. Nor does our conclusion condemn com-

plaints about districting to echo into a void. The States,

for example, are actively addressing the issue on a number

of fronts. In 2015, the Supreme Court of Florida struck

down that State’s congressional districting plan as a viola-

tion of the Fair Districts Amendment to the Florida Con-

stitution. League of Women Voters of Florida v. Detzner,

172 So. 3d 363 (2015). The dissent wonders why we can’t

do the same. See post, at 31. The answer is that there is

no “Fair Districts Amendment” to the Federal Constitu-

tion. Provisions in state statutes and state constitutions

can provide standards and guidance for state courts to

apply. (We do not understand how the dissent can main-

tain that a provision saying that no districting plan “shall

32 RUCHO v. COMMON CAUSE

Opinion of the Court

be drawn with the intent to favor or disfavor a political

party” provides little guidance on the question. See post,

at 31, n. 6.) Indeed, numerous other States are restricting

partisan considerations in districting through legislation.

One way they are doing so is by placing power to draw

electoral districts in the hands of independent commis-

sions. For example, in November 2018, voters in Colorado

and Michigan approved constitutional amendments creat-

ing multimember commissions that will be responsible in

whole or in part for creating and approving district maps

for congressional and state legislative districts. See Colo.

Const., Art. V, §§44, 46; Mich. Const., Art. IV, §6. Mis-

souri is trying a different tack. Voters there overwhelm-

ingly approved the creation of a new position—state de-

mographer—to draw state legislative district lines. Mo.

Const., Art. III, §3.

Other States have mandated at least some of the tradi-

tional districting criteria for their mapmakers. Some have

outright prohibited partisan favoritism in redistricting.

See Fla. Const., Art. III, §20(a) (“No apportionment plan

or individual district shall be drawn with the intent to

favor or disfavor a political party or an incumbent.”); Mo.

Const., Art. III, §3 (“Districts shall be designed in a man-

ner that achieves both partisan fairness and, secondarily,

competitiveness. ‘Partisan fairness’ means that parties

shall be able to translate their popular support into legis-

lative representation with approximately equal efficiency.”);

Iowa Code §42.4(5) (2016) (“No district shall be drawn for

the purpose of favoring a political party, incumbent legis-

lator or member of Congress, or other person or group.”);

Del. Code Ann., Tit. xxix, §804 (2017) (providing that in

determining district boundaries for the state legislature,

no district shall “be created so as to unduly favor any

person or political party”).

As noted, the Framers gave Congress the power to do

something about partisan gerrymandering in the Elections

Cite as: 588 U. S. ____ (2019) 33

Opinion of the Court

Clause. The first bill introduced in the 116th Congress

would require States to create 15-member independent

commissions to draw congressional districts and would

establish certain redistricting criteria, including protec-

tion for communities of interest, and ban partisan gerry-

mandering. H. R. 1, 116th Cong., 1st Sess., §§2401, 2411

(2019).

Dozens of other bills have been introduced to limit

reliance on political considerations in redistricting. In

2010, H. R. 6250 would have required States to follow

standards of compactness, contiguity, and respect for

political subdivisions in redistricting. It also would have

prohibited the establishment of congressional districts

“with the major purpose of diluting the voting strength of

any person, or group, including any political party,” except

when necessary to comply with the Voting Rights Act of

1965. H. R. 6250, 111th Cong., 2d Sess., §2 (referred to

committee).

Another example is the Fairness and Independence in

Redistricting Act, which was introduced in 2005 and has

been reintroduced in every Congress since. That bill

would require every State to establish an independent

commission to adopt redistricting plans. The bill also set

forth criteria for the independent commissions to use, such

as compactness, contiguity, and population equality. It

would prohibit consideration of voting history, political

party affiliation, or incumbent Representative’s residence.

H. R. 2642, 109th Cong., 1st Sess., §4 (referred to

subcommittee).

We express no view on any of these pending proposals.

We simply note that the avenue for reform established by

the Framers, and used by Congress in the past, remains

open.

* * *

No one can accuse this Court of having a crabbed view of

34 RUCHO v. COMMON CAUSE

Opinion of the Court

the reach of its competence. But we have no commission

to allocate political power and influence in the absence of a

constitutional directive or legal standards to guide us in

the exercise of such authority. “It is emphatically the

province and duty of the judicial department to say what

the law is.” Marbury v. Madison, 1 Cranch, at 177. In

this rare circumstance, that means our duty is to say “this

is not law.”

The judgments of the United States District Court for

the Middle District of North Carolina and the United

States District Court for the District of Maryland are

vacated, and the cases are remanded with instructions to

dismiss for lack of jurisdiction.

It is so ordered.

Cite as: 588 U. S. ____ (2019) 1

KAGAN, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 18–422, 18–726

_________________

ROBERT A. RUCHO, ET AL., APPELLANTS

18–422 v.

COMMON CAUSE, ET AL.; AND

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF NORTH CAROLINA

LINDA H. LAMONE, ET AL., APPELLANTS

18–726 v.

O. JOHN BENISEK, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF MARYLAND

[June 27, 2019]

JUSTICE KAGAN, with whom JUSTICE GINSBURG,

JUSTICE BREYER, and JUSTICE SOTOMAYOR join,

dissenting.

For the first time ever, this Court refuses to remedy a

constitutional violation because it thinks the task beyond

judicial capabilities.

And not just any constitutional violation. The partisan

gerrymanders in these cases deprived citizens of the most

fundamental of their constitutional rights: the rights to

participate equally in the political process, to join with

others to advance political beliefs, and to choose their

political representatives. In so doing, the partisan gerry-

manders here debased and dishonored our democracy,

turning upside-down the core American idea that all

governmental power derives from the people. These ger-

rymanders enabled politicians to entrench themselves in

office as against voters’ preferences. They promoted parti-

2 RUCHO v. COMMON CAUSE

KAGAN, J., dissenting

sanship above respect for the popular will. They encour-

aged a politics of polarization and dysfunction. If left

unchecked, gerrymanders like the ones here may irrepa-

rably damage our system of government.

And checking them is not beyond the courts. The major-

ity’s abdication comes just when courts across the country,

including those below, have coalesced around manageable

judicial standards to resolve partisan gerrymandering

claims. Those standards satisfy the majority’s own

benchmarks. They do not require—indeed, they do not

permit—courts to rely on their own ideas of electoral

fairness, whether proportional representation or any

other. And they limit courts to correcting only egregious

gerrymanders, so judges do not become omnipresent play-

ers in the political process. But yes, the standards used

here do allow—as well they should—judicial intervention

in the worst-of-the-worst cases of democratic subversion,

causing blatant constitutional harms. In other words,

they allow courts to undo partisan gerrymanders of the

kind we face today from North Carolina and Maryland. In

giving such gerrymanders a pass from judicial review, the

majority goes tragically wrong.

I

Maybe the majority errs in these cases because it pays

so little attention to the constitutional harms at their core.

After dutifully reciting each case’s facts, the majority

leaves them forever behind, instead immersing itself in

everything that could conceivably go amiss if courts be-

came involved. So it is necessary to fill in the gaps. To

recount exactly what politicians in North Carolina and

Maryland did to entrench their parties in political office,

whatever the electorate might think. And to elaborate on

the constitutional injury those politicians wreaked, to our

democratic system and to individuals’ rights. All that will

help in considering whether courts confronting partisan

Cite as: 588 U. S. ____ (2019) 3

KAGAN, J., dissenting

gerrymandering claims are really so hamstrung—so un-

able to carry out their constitutional duties—as the major-

ity thinks.

A

The plaintiffs here challenge two congressional district-

ing plans—one adopted by Republicans in North Carolina

and the other by Democrats in Maryland—as unconstitu-

tional partisan gerrymanders. As I relate what happened

in those two States, ask yourself: Is this how American

democracy is supposed to work?

Start with North Carolina. After the 2010 census, the

North Carolina General Assembly, with Republican major-

ities in both its House and its Senate, enacted a new con-

gressional districting plan. That plan governed the two

next national elections. In 2012, Republican candidates

won 9 of the State’s 13 seats in the U. S. House of Repre-

sentatives, although they received only 49% of the

statewide vote. In 2014, Republican candidates increased

their total to 10 of the 13 seats, this time based on 55% of

the vote. Soon afterward, a District Court struck down

two districts in the plan as unconstitutional racial gerry-

manders. See Harris v. McCrory, 159 F. Supp. 3d 600

(MDNC 2016), aff ’d sub nom. Cooper v. Harris, 581 U. S.

___ (2017). The General Assembly, with both chambers

still controlled by Republicans, went back to the drawing

board to craft the needed remedial state map. And here is

how the process unfolded:

 The Republican co-chairs of the Assembly’s redis-

tricting committee, Rep. David Lewis and Sen.

Robert Rucho, instructed Dr. Thomas Hofeller, a

Republican districting specialist, to create a new

map that would maintain the 10–3 composition of

the State’s congressional delegation come what

might. Using sophisticated technological tools and

4 RUCHO v. COMMON CAUSE

KAGAN, J., dissenting

precinct-level election results selected to predict

voting behavior, Hofeller drew district lines to min-

imize Democrats’ voting strength and ensure the

election of 10 Republican Congressmen. See Com-

mon Cause v. Rucho, 318 F. Supp. 3d 777, 805–806

(MDNC 2018).

 Lewis then presented for the redistricting commit-

tee’s (retroactive) approval a list of the criteria Ho-

feller had employed—including one labeled “Parti-

san Advantage.” That criterion, endorsed by a

party-line vote, stated that the committee would

make all “reasonable efforts to construct districts”

to “maintain the current [10–3] partisan makeup”

of the State’s congressional delegation. Id., at 807.

 Lewis explained the Partisan Advantage criterion to

legislators as follows: We are “draw[ing] the maps

to give a partisan advantage to 10 Republicans and

3 Democrats because [I] d[o] not believe it[’s] possi-

ble to draw a map with 11 Republicans and 2 Dem-

ocrats.” Id., at 808 (internal quotation marks

omitted).

 The committee and the General Assembly later en-

acted, again on a party-line vote, the map Hofeller

had drawn. See id., at 809.

 Lewis announced: “I think electing Republicans is

better than electing Democrats. So I drew this map

to help foster what I think is better for the coun-

try.” Ibid. (internal quotation marks omitted).

You might think that judgment best left to the American

people. But give Lewis credit for this much: The map has

worked just as he planned and predicted. In 2016, Repub-

Cite as: 588 U. S. ____ (2019) 5

KAGAN, J., dissenting

lican congressional candidates won 10 of North Carolina’s

13 seats, with 53% of the statewide vote. Two years later,

Republican candidates won 9 of 12 seats though they

received only 50% of the vote. (The 13th seat has not yet

been filled because fraud tainted the initial election.)

Events in Maryland make for a similarly grisly tale.

For 50 years, Maryland’s 8-person congressional delega-

tion typically consisted of 2 or 3 Republicans and 5 or 6

Democrats. After the 2000 districting, for example, the

First and Sixth Districts reliably elected Republicans, and

the other districts as reliably elected Democrats. See R.

Cohen & J. Barnes, Almanac of American Politics 2016, p.

836 (2015). But in the 2010 districting cycle, the State’s

Democratic leaders, who controlled the governorship and

both houses of the General Assembly, decided to press

their advantage.

 Governor Martin O’Malley, who oversaw the pro-

cess, decided (in his own later words) “to create a

map that was more favorable for Democrats over

the next ten years.” Because flipping the First Dis-

trict was geographically next-to-impossible, “a deci-

sion was made to go for the Sixth.” Benisek v. La-

mone, 348 F. Supp. 3d 493, 502 (Md. 2018) (quoting

O’Malley; emphasis deleted).

 O’Malley appointed an advisory committee as the

public face of his effort, while asking Congressman

Steny Hoyer, a self-described “serial gerryman-

derer,” to hire and direct a mapmaker. Id., at 502.

Hoyer retained Eric Hawkins, an analyst at a polit-

ical consulting firm providing services to Demo-

crats. See id., at 502–503.

 Hawkins received only two instructions: to ensure

that the new map produced 7 reliable Democratic

6 RUCHO v. COMMON CAUSE

KAGAN, J., dissenting

seats, and to protect all Democratic incumbents.

See id., at 503.

 Using similar technologies and election data as Ho-

feller, Hawkins produced a map to those specifica-

tions. Although new census figures required re-

moving only 10,000 residents from the Sixth

District, Hawkins proposed a large-scale population

transfer. The map moved about 360,000 voters out

of the district and another 350,000 in. That swap

decreased the number of registered Republicans in

the district by over 66,000 and increased the num-

ber of registered Democrats by about 24,000, all to

produce a safe Democratic district. See id., at 499,

501.

 After the advisory committee adopted the map on a

party-line vote, State Senate President Thomas

Miller briefed the General Assembly’s Democratic

caucuses about the new map’s aims. Miller told his

colleagues that the map would give “Democrats a

real opportunity to pick up a seventh seat in the

delegation” and that “[i]n the face of Republican

gains in redistricting in other states[,] we have a

serious obligation to create this opportunity.” Id.,

at 506 (internal quotation marks omitted).

 The General Assembly adopted the plan on a party-

line vote. See id., at 506.

Maryland’s Democrats proved no less successful than

North Carolina’s Republicans in devising a voter-proof

map. In the four elections that followed (from 2012

through 2018), Democrats have never received more than

65% of the statewide congressional vote. Yet in each of

those elections, Democrats have won (you guessed it) 7 of 8

Cite as: 588 U. S. ____ (2019) 7

KAGAN, J., dissenting

House seats—including the once-reliably-Republican Sixth

District.

B

Now back to the question I asked before: Is that how

American democracy is supposed to work? I have yet to

meet the person who thinks so.

“Governments,” the Declaration of Independence states,

“deriv[e] their just Powers from the Consent of the Gov-

erned.” The Constitution begins: “We the People of the

United States.” The Gettysburg Address (almost) ends:

“[G]overnment of the people, by the people, for the people.”

If there is a single idea that made our Nation (and that

our Nation commended to the world), it is this one: The

people are sovereign. The “power,” James Madison wrote,

“is in the people over the Government, and not in the

Government over the people.” 4 Annals of Cong. 934

(1794).

Free and fair and periodic elections are the key to that

vision. The people get to choose their representatives.

And then they get to decide, at regular intervals, whether

to keep them. Madison again: “[R]epublican liberty” de-

mands “not only, that all power should be derived from the

people; but that those entrusted with it should be kept in

dependence on the people.” 2 The Federalist No. 37, p. 4

(J. & A. McLean eds. 1788). Members of the House of

Representatives, in particular, are supposed to “recollect[ ]

[that] dependence” every day. Id., No. 57, at 155. To

retain an “intimate sympathy with the people,” they must

be “compelled to anticipate the moment” when their “exer-

cise of [power] is to be reviewed.” Id., Nos. 52, 57, at 124,

155. Election day—next year, and two years later, and

two years after that—is what links the people to their

representatives, and gives the people their sovereign

power. That day is the foundation of democratic

governance.

8 RUCHO v. COMMON CAUSE

KAGAN, J., dissenting

And partisan gerrymandering can make it meaningless.

At its most extreme—as in North Carolina and Mary-

land—the practice amounts to “rigging elections.” Vieth v.

Jubelirer, 541 U. S. 267, 317 (2004) (Kennedy, J., concur-

ring in judgment) (internal quotation marks omitted). By

drawing districts to maximize the power of some voters

and minimize the power of others, a party in office at the

right time can entrench itself there for a decade or more,

no matter what the voters would prefer. Just ask the

people of North Carolina and Maryland. The “core princi-

ple of republican government,” this Court has recognized,

is “that the voters should choose their representatives, not

the other way around.” Arizona State Legislature v. Ari-

zona Independent Redistricting Comm’n, 576 U. S. ___, ___

(2015) (slip op., at 35) (internal quotation marks omitted).

Partisan gerrymandering turns it the other way around.

By that mechanism, politicians can cherry-pick voters to

ensure their reelection. And the power becomes, as Madi-

son put it, “in the Government over the people.” 4 Annals

of Cong. 934.

The majority disputes none of this. I think it important

to underscore that fact: The majority disputes none of

what I have said (or will say) about how gerrymanders

undermine democracy. Indeed, the majority concedes

(really, how could it not?) that gerrymandering is “incom-

patible with democratic principles.” Ante, at 30 (quoting

Arizona State Legislature, 576 U. S., at ___ (slip op., at 1)).

And therefore what? That recognition would seem to

demand a response. The majority offers two ideas that

might qualify as such. One is that the political process

can deal with the problem—a proposition so dubious on its

face that I feel secure in delaying my answer for some

time. See ante, at 31–33; infra, at 29–31. The other is

that political gerrymanders have always been with us.

See ante, at 8, 24. To its credit, the majority does not

frame that point as an originalist constitutional argument.

Cite as: 588 U. S. ____ (2019) 9

KAGAN, J., dissenting

After all (as the majority rightly notes), racial and resi-

dential gerrymanders were also once with us, but the

Court has done something about that fact. See ante, at

10.1 The majority’s idea instead seems to be that if we

have lived with partisan gerrymanders so long, we will

survive.

That complacency has no cause. Yes, partisan gerry-

mandering goes back to the Republic’s earliest days. (As

does vociferous opposition to it.) But big data and modern

technology—of just the kind that the mapmakers in North

Carolina and Maryland used—make today’s gerrymander-

ing altogether different from the crude linedrawing of the

past. Old-time efforts, based on little more than guesses,

sometimes led to so-called dummymanders—

gerrymanders that went spectacularly wrong. Not likely

in today’s world. Mapmakers now have access to more

granular data about party preference and voting behavior

than ever before. County-level voting data has given way

to precinct-level or city-block-level data; and increasingly,

mapmakers avail themselves of data sets providing wide-

ranging information about even individual voters. See

Brief for Political Science Professors as Amici Curiae 20–

22. Just as important, advancements in computing tech-

nology have enabled mapmakers to put that information

to use with unprecedented efficiency and precision. See

id., at 22–25. While bygone mapmakers may have drafted

three or four alternative districting plans, today’s map-

makers can generate thousands of possibilities at the

touch of a key—and then choose the one giving their party

maximum advantage (usually while still meeting tradi-

——————

1 And even putting that aside, any originalist argument would have

to deal with an inconvenient fact. The Framers originally viewed

political parties themselves (let alone their most partisan actions) with

deep suspicion, as fomenters of factionalism and “symptom[s] of disease

in the body politic.” G. Wood, Empire of Liberty: A History of the Early

Republic, 1789–1815, p. 140 (2009).

10 RUCHO v. COMMON CAUSE

KAGAN, J., dissenting

tional districting requirements). The effect is to make

gerrymanders far more effective and durable than before,

insulating politicians against all but the most titanic

shifts in the political tides. These are not your grand-

father’s—let alone the Framers’—gerrymanders.

The proof is in the 2010 pudding. That redistricting

cycle produced some of the most extreme partisan gerry-

manders in this country’s history. I’ve already recounted

the results from North Carolina and Maryland, and you’ll

hear even more about those. See supra, at 4–6; infra, at

19–20. But the voters in those States were not the only

ones to fall prey to such districting perversions. Take

Pennsylvania. In the three congressional elections occur-

ring under the State’s original districting plan (before the

State Supreme Court struck it down), Democrats received

between 45% and 51% of the statewide vote, but won only

5 of 18 House seats. See League of Women Voters v. Penn-

sylvania, ___ Pa. ___, ___, 178 A. 3d 737, 764 (2018). Or go

next door to Ohio. There, in four congressional elections,

Democrats tallied between 39% and 47% of the statewide

vote, but never won more than 4 of 16 House seats. See

Ohio A. Philip Randolph Inst. v. Householder, 373

F. Supp. 3d 978, 1074 (SD Ohio 2019). (Nor is there any

reason to think that the results in those States stemmed

from political geography or non-partisan districting crite-

ria, rather than from partisan manipulation. See infra, at

15, 31.) And gerrymanders will only get worse (or depend-

ing on your perspective, better) as time goes on—as data

becomes ever more fine-grained and data analysis tech-

niques continue to improve. What was possible with paper

and pen—or even with Windows 95—doesn’t hold a candle

(or an LED bulb?) to what will become possible with de-

velopments like machine learning. And someplace along

this road, “we the people” become sovereign no longer.

Cite as: 588 U. S. ____ (2019) 11

KAGAN, J., dissenting

C

Partisan gerrymandering of the kind before us not only

subverts democracy (as if that weren’t bad enough). It

violates individuals’ constitutional rights as well. That

statement is not the lonesome cry of a dissenting Justice.

This Court has recognized extreme partisan gerrymander-

ing as such a violation for many years.

Partisan gerrymandering operates through vote dilu-

tion—the devaluation of one citizen’s vote as compared to

others. A mapmaker draws district lines to “pack” and

“crack” voters likely to support the disfavored party. See

generally Gill v. Whitford, 585 U. S. ___, ___–___ (2018)

(slip op., at 14–16). He packs supermajorities of those

voters into a relatively few districts, in numbers far greater

than needed for their preferred candidates to prevail.

Then he cracks the rest across many more districts,

spreading them so thin that their candidates will not be

able to win. Whether the person is packed or cracked, his

vote carries less weight—has less consequence—than it

would under a neutrally drawn (non-partisan) map. See

id., at ___ (KAGAN, J., concurring) (slip op., at 4). In short,

the mapmaker has made some votes count for less, be-

cause they are likely to go for the other party.

That practice implicates the Fourteenth Amendment’s

Equal Protection Clause. The Fourteenth Amendment, we

long ago recognized, “guarantees the opportunity for equal

participation by all voters in the election” of legislators.

Reynolds v. Sims, 377 U. S. 533, 566 (1964). And that

opportunity “can be denied by a debasement or dilution of

the weight of a citizen’s vote just as effectively as by wholly

prohibiting the free exercise of the franchise.” Id., at

555. Based on that principle, this Court in its one-person-

one-vote decisions prohibited creating districts with signif-

icantly different populations. A State could not, we ex-

plained, thus “dilut[e] the weight of votes because of place

of residence.” Id., at 566. The constitutional injury in a

12 RUCHO v. COMMON CAUSE

KAGAN, J., dissenting

partisan gerrymandering case is much the same, except

that the dilution is based on party affiliation. In such a

case, too, the districters have set out to reduce the weight

of certain citizens’ votes, and thereby deprive them of their

capacity to “full[y] and effective[ly] participat[e] in the

political process[ ].” Id., at 565. As Justice Kennedy (in a

controlling opinion) once hypothesized: If districters de-

clared that they were drawing a map “so as most to bur-

den [the votes of] Party X’s” supporters, it would violate

the Equal Protection Clause. Vieth, 541 U. S., at 312. For

(in the language of the one-person-one-vote decisions) it

would infringe those voters’ rights to “equal [electoral]

participation.” Reynolds, 377 U. S., at 566; see Gray v.

Sanders, 372 U. S. 368, 379–380 (1963) (“The concept of

‘we the people’ under the Constitution visualizes no pre-

ferred class of voters but equality among those who meet

the basic qualifications”).

And partisan gerrymandering implicates the First

Amendment too. That Amendment gives its greatest

protection to political beliefs, speech, and association. Yet

partisan gerrymanders subject certain voters to “disfa-

vored treatment”—again, counting their votes for less—

precisely because of “their voting history [and] their ex-

pression of political views.” Vieth, 541 U. S., at 314 (opin-

ion of Kennedy, J.). And added to that strictly personal

harm is an associational one. Representative democracy is

“unimaginable without the ability of citizens to band

together in [support of] candidates who espouse their

political views.” California Democratic Party v. Jones, 530

U. S. 567, 574 (2000). By diluting the votes of certain

citizens, the State frustrates their efforts to translate

those affiliations into political effectiveness. See Gill, 585

U. S., at ___ (KAGAN, J., concurring) (slip op., at 9) (“Mem-

bers of the disfavored party[,] deprived of their natural

political strength[,] may face difficulties fundraising,

registering voters, [and] eventually accomplishing their

Cite as: 588 U. S. ____ (2019) 13

KAGAN, J., dissenting

policy objectives”). In both those ways, partisan gerry-

manders of the kind we confront here undermine the

protections of “democracy embodied in the First Amend-

ment.” Elrod v. Burns, 427 U. S. 347, 357 (1976) (internal

quotation marks omitted).

Though different Justices have described the constitu-

tional harm in diverse ways, nearly all have agreed on this

much: Extreme partisan gerrymandering (as happened in

North Carolina and Maryland) violates the Constitution.

See, e.g., Vieth, 541 U. S., at 293 (plurality opinion) (“[A]n

excessive injection of politics [in districting] is unlawful”

(emphasis deleted)); id., at 316 (opinion of Kennedy, J.)

(“[P]artisan gerrymandering that disfavors one party is

[im]permissible”); id., at 362 (BREYER, J., dissenting)

(Gerrymandering causing political “entrenchment” is a

“violat[ion of] the Constitution’s Equal Protection

Clause”); Davis v. Bandemer, 478 U. S. 109, 132 (1986)

(plurality opinion) (“[U]nconstitutional discrimination”

occurs “when the electoral system is arranged in a manner

that will consistently degrade [a voter’s] influence on the

political process”); id., at 165 (Powell, J., concurring)

(“Unconstitutional gerrymandering” occurs when “the

boundaries of the voting districts have been distorted

deliberately” to deprive voters of “an equal opportunity to

participate in the State’s legislative processes”). Once

again, the majority never disagrees; it appears to accept

the “principle that each person must have an equal say in

the election of representatives.” Ante, at 20. And indeed,

without this settled and shared understanding that cases

like these inflict constitutional injury, the question of

whether there are judicially manageable standards for

resolving them would never come up.

II

So the only way to understand the majority’s opinion is

as follows: In the face of grievous harm to democratic

14 RUCHO v. COMMON CAUSE

KAGAN, J., dissenting

governance and flagrant infringements on individuals’

rights—in the face of escalating partisan manipulation

whose compatibility with this Nation’s values and law no

one defends—the majority declines to provide any remedy.

For the first time in this Nation’s history, the majority

declares that it can do nothing about an acknowledged

constitutional violation because it has searched high and

low and cannot find a workable legal standard to apply.

The majority gives two reasons for thinking that the

adjudication of partisan gerrymandering claims is beyond

judicial capabilities. First and foremost, the majority

says, it cannot find a neutral baseline—one not based on

contestable notions of political fairness—from which to

measure injury. See ante, at 15–19. According to the

majority, “[p]artisan gerrymandering claims invariably

sound in a desire for proportional representation.” Ante,

at 16. But the Constitution does not mandate proportional

representation. So, the majority contends, resolving those

claims “inevitably” would require courts to decide what is

“fair” in the context of districting. Ante, at 17. They

would have “to make their own political judgment about

how much representation particular political parties

deserve” and “to rearrange the challenged districts to

achieve that end.” Ibid. (emphasis in original). And sec-

ond, the majority argues that even after establishing a

baseline, a court would have no way to answer “the deter-

minative question: ‘How much is too much?’ ” Ante, at 19.

No “discernible and manageable” standard is available,

the majority claims—and so courts could willy-nilly be-

come embroiled in fixing every districting plan. Ante, at

20; see ante, at 15–16.

I’ll give the majority this one—and important—thing: It

identifies some dangers everyone should want to avoid.

Judges should not be apportioning political power based

on their own vision of electoral fairness, whether propor-

tional representation or any other. And judges should not

Cite as: 588 U. S. ____ (2019) 15

KAGAN, J., dissenting

be striking down maps left, right, and center, on the view

that every smidgen of politics is a smidgen too much.

Respect for state legislative processes—and restraint in

the exercise of judicial authority—counsels intervention in

only egregious cases.

But in throwing up its hands, the majority misses some-

thing under its nose: What it says can’t be done has been

done. Over the past several years, federal courts across

the country—including, but not exclusively, in the deci-

sions below—have largely converged on a standard for

adjudicating partisan gerrymandering claims (striking

down both Democratic and Republican districting plans in

the process). See also Ohio A. Philip Randolph Inst., 373

F. Supp. 3d 978; League of Women Voters of Michigan v.

Benson, 373 F. Supp. 3d 867 (ED Mich. 2019). And that

standard does what the majority says is impossible. The

standard does not use any judge-made conception of elec-

toral fairness—either proportional representation or any

other; instead, it takes as its baseline a State’s own crite-

ria of fairness, apart from partisan gain. And by requiring

plaintiffs to make difficult showings relating to both pur-

pose and effects, the standard invalidates the most ex-

treme, but only the most extreme, partisan gerrymanders.

Below, I first explain the framework courts have devel-

oped, and describe its application in these two cases.

Doing so reveals in even starker detail than before how

much these partisan gerrymanders deviated from demo-

cratic norms. As I lay out the lower courts’ analyses, I

consider two specific criticisms the majority levels—each

of which reveals a saddening nonchalance about the threat

such districting poses to self-governance. All of that lays

the groundwork for then assessing the majority’s more

general view, described above, that judicial policing in this

area cannot be either neutral or restrained. The lower

courts’ reasoning, as I’ll show, proves the opposite.

16 RUCHO v. COMMON CAUSE

KAGAN, J., dissenting

A

Start with the standard the lower courts used. The

majority disaggregates the opinions below, distinguishing

the one from the other and then chopping up each into “a

number of ‘tests.’ ” Ante, at 22; see ante, at 22–30. But in

doing so, it fails to convey the decisions’ most significant—

and common—features. Both courts focused on the harm

of vote dilution, see supra, at 11, though the North Caro-

lina court mostly grounded its analysis in the Fourteenth

Amendment and the Maryland court in the First. And

both courts (like others around the country) used basically

the same three-part test to decide whether the plaintiffs

had made out a vote dilution claim. As many legal stand-

ards do, that test has three parts: (1) intent; (2) effects;

and (3) causation. First, the plaintiffs challenging a dis-

tricting plan must prove that state officials’ “predominant

purpose” in drawing a district’s lines was to “entrench

[their party] in power” by diluting the votes of citizens

favoring its rival. Rucho, 318 F. Supp. 3d, at 864 (quoting

Arizona State Legislature, 576 U. S., at ___ (slip op., at 1)).

Second, the plaintiffs must establish that the lines drawn

in fact have the intended effect by “substantially” diluting

their votes. Lamone, 348 F. Supp. 3d, at 498. And third,

if the plaintiffs make those showings, the State must come

up with a legitimate, non-partisan justification to save its

map. See Rucho, 318 F. Supp. 3d, at 867.2 If you are a

lawyer, you know that this test looks utterly ordinary. It

is the sort of thing courts work with every day.

Turn now to the test’s application. First, did the North

Carolina and Maryland districters have the predominant

——————

2 Neither North Carolina nor Maryland offered much of an alterna-

tive explanation for the evidence that the plaintiffs put forward.

Presumably, both States had trouble coming up with something. Like

the majority, see ante, at 25, I therefore pass quickly over this part of

the test.

Cite as: 588 U. S. ____ (2019) 17

KAGAN, J., dissenting

purpose of entrenching their own party in power? Here,

the two District Courts catalogued the overwhelming

direct evidence that they did. To remind you of some

highlights, see supra, at 4–6: North Carolina’s redistrict-

ing committee used “Partisan Advantage” as an official

criterion for drawing district lines. And from the first to

the last, that committee’s chair (along with his mapmaker)

acted to ensure a 10–3 partisan split, whatever the

statewide vote, because he thought that “electing Republi-

cans is better than electing Democrats.” For their part,

Maryland’s Democrats—the Governor, senior Congress-

man, and State Senate President alike—openly admitted

to a single driving purpose: flip the Sixth District from

Republican to Democratic. They did not blanch from

moving some 700,000 voters into new districts (when one-

person-one-vote rules required relocating just 10,000) for

that reason and that reason alone.

The majority’s response to the District Courts’ purpose

analysis is discomfiting. The majority does not contest the

lower courts’ findings; how could it? Instead, the majority

says that state officials’ intent to entrench their party in

power is perfectly “permissible,” even when it is the pre-

dominant factor in drawing district lines. Ante, at 23. But

that is wrong. True enough, that the intent to inject “po-

litical considerations” into districting may not raise any

constitutional concerns. In Gaffney v. Cummings, 412

U. S. 735 (1973), for example, we thought it non-

problematic when state officials used political data to

ensure rough proportional representation between the two

parties. And true enough that even the naked purpose to

gain partisan advantage may not rise to the level of consti-

tutional notice when it is not the driving force in mapmak-

ing or when the intended gain is slight. See Vieth, 541

U. S., at 286 (plurality opinion). But when political actors

have a specific and predominant intent to entrench them-

selves in power by manipulating district lines, that goes

18 RUCHO v. COMMON CAUSE

KAGAN, J., dissenting

too far. Consider again Justice Kennedy’s hypothetical of

mapmakers who set out to maximally burden (i.e., make

count for as little as possible) the votes going to a rival

party. See supra, at 12. Does the majority really think

that goal is permissible? But why even bother with hypo-

theticals? Just consider the purposes here. It cannot be

permissible and thus irrelevant, as the majority claims,

that state officials have as their purpose the kind of gro-

tesquely gerrymandered map that, according to all this

Court has ever said, violates the Constitution. See supra,

at 13.

On to the second step of the analysis, where the plain-

tiffs must prove that the districting plan substantially

dilutes their votes. The majority fails to discuss most of

the evidence the District Courts relied on to find that the

plaintiffs had done so. See ante, at 23–24. But that evi-

dence—particularly from North Carolina—is the key to

understanding both the problem these cases present and

the solution to it they offer. The evidence reveals just how

bad the two gerrymanders were (in case you had any

doubts). And it shows how the same technologies and data

that today facilitate extreme partisan gerrymanders also

enable courts to discover them, by exposing just how much

they dilute votes. See Vieth, 541 U. S., at 312–313 (opin-

ion of Kennedy, J.) (predicting that development).

Consider the sort of evidence used in North Carolina

first. There, the plaintiffs demonstrated the districting

plan’s effects mostly by relying on what might be called

the “extreme outlier approach.” (Here’s a spoiler: the

State’s plan was one.) The approach—which also has

recently been used in Michigan and Ohio litigation—

begins by using advanced computing technology to ran-

domly generate a large collection of districting plans that

incorporate the State’s physical and political geography

and meet its declared districting criteria, except for parti-

san gain. For each of those maps, the method then uses

Cite as: 588 U. S. ____ (2019) 19

KAGAN, J., dissenting

actual precinct-level votes from past elections to determine

a partisan outcome (i.e., the number of Democratic and

Republican seats that map produces). Suppose we now

have 1,000 maps, each with a partisan outcome attached

to it. We can line up those maps on a continuum—the

most favorable to Republicans on one end, the most favor-

able to Democrats on the other.3 We can then find the

median outcome—that is, the outcome smack dab in the

center—in a world with no partisan manipulation. And

we can see where the State’s actual plan falls on the spec-

trum—at or near the median or way out on one of the

tails? The further out on the tail, the more extreme the

partisan distortion and the more significant the vote

dilution. See generally Brief for Eric S. Lander as Amicus

Curiae 7–22.

Using that approach, the North Carolina plaintiffs

offered a boatload of alternative districting plans—all

showing that the State’s map was an out-out-out-outlier.

One expert produced 3,000 maps, adhering in the way

described above to the districting criteria that the North

Carolina redistricting committee had used, other than

partisan advantage. To calculate the partisan outcome of

those maps, the expert also used the same election data (a

composite of seven elections) that Hofeller had employed

when devising the North Carolina plan in the first in-

stance. The results were, shall we say, striking. Every

single one of the 3,000 maps would have produced at least

one more Democratic House Member than the State’s

actual map, and 77% would have elected three or four

more. See Rucho, 318 F. Supp. 3d, at 875–876, 894; App.

——————

3 As I’ll discuss later, this distribution of outcomes provides what the

majority says does not exist—a neutral comparator for the State’s own

plan. See ante, at 16–19; supra, at 14; infra, at 22–25. It essentially

answers the question: In a State with these geographic features and

this distribution of voters and this set of districting criteria—but

without partisan manipulation—what would happen?

20 RUCHO v. COMMON CAUSE

KAGAN, J., dissenting

276. A second expert obtained essentially the same re-

sults with maps conforming to more generic districting

criteria (e.g., compactness and contiguity of districts).

Over 99% of that expert’s 24,518 simulations would have

led to the election of at least one more Democrat, and over

70% would have led to two or three more. See Rucho, 318

F. Supp. 3d, at 893–894. Based on those and other find-

ings, the District Court determined that the North Caro-

lina plan substantially dilutes the plaintiffs’ votes.4

Because the Maryland gerrymander involved just one

district, the evidence in that case was far simpler—but no

less powerful for that. You’ve heard some of the numbers

before. See supra, at 6. The 2010 census required only a

minimal change in the Sixth District’s population—the

subtraction of about 10,000 residents from more than

700,000. But instead of making a correspondingly mini-

mal adjustment, Democratic officials reconfigured the

entire district. They moved 360,000 residents out and

another 350,000 in, while splitting some counties for the

first time in almost two centuries. The upshot was a

district with 66,000 fewer Republican voters and 24,000

more Democratic ones. In the old Sixth, 47% of registered

voters were Republicans and only 36% Democrats. But in

the new Sixth, 44% of registered voters were Democrats

and only 33% Republicans. That reversal of the district’s

partisan composition translated into four consecutive

Democratic victories, including in a wave election year for

——————

4 The District Court also relied on actual election results (under both

the new plan and the similar one preceding it) and on mathematical

measurements of the new plan’s “partisan asymmetry.” See Rucho, 318

F. Supp. 3d, at 884–895. Those calculations assess whether supporters

of the two parties can translate their votes into representation with

equal ease. See Stephanopoulos & McGhee, The Measure of a Metric,

70 Stan. L. Rev. 1503, 1505–1507 (2018). The court found that the new

North Carolina plan led to extreme asymmetry, compared both to plans

used in the rest of the country and to plans previously used in the

State. See Rucho, 318 F. Supp. 3d, at 886–887, 892–893.

Cite as: 588 U. S. ____ (2019) 21

KAGAN, J., dissenting

Republicans (2014). In what was once a party stronghold,

Republicans now have little or no chance to elect their

preferred candidate. The District Court thus found that

the gerrymandered Maryland map substantially dilutes

Republicans’ votes. See Lamone, 348 F. Supp. 3d, at 519–

520.

The majority claims all these findings are mere “prog-

nostications” about the future, in which no one “can have

any confidence.” Ante, at 23 (internal quotation marks

omitted). But the courts below did not gaze into crystal

balls, as the majority tries to suggest. Their findings

about these gerrymanders’ effects on voters—both in the

past and predictably in the future—were evidence-based,

data-based, statistics-based. Knowledge-based, one might

say. The courts did what anyone would want a deci-

sionmaker to do when so much hangs in the balance.

They looked hard at the facts, and they went where the

facts led them. They availed themselves of all the infor-

mation that mapmakers (like Hofeller and Hawkins) and

politicians (like Lewis and O’Malley) work so hard to

amass and then use to make every districting decision.

They refused to content themselves with unsupported and

out-of-date musings about the unpredictability of the

American voter. See ante, at 24–25; but see Brief for

Political Science Professors as Amici Curiae 14–20 (citing

chapter and verse to the contrary). They did not bet

America’s future—as today the majority does—on the idea

that maps constructed with so much expertise and care to

make electoral outcomes impervious to voting would

somehow or other come apart. They looked at the evi-

dence—at the facts about how these districts operated—

and they could reach only one conclusion. By substantially

diluting the votes of citizens favoring their rivals, the

politicians of one party had succeeded in entrenching

themselves in office. They had beat democracy.

22 RUCHO v. COMMON CAUSE

KAGAN, J., dissenting

B

The majority’s broadest claim, as I’ve noted, is that this

is a price we must pay because judicial oversight of parti-

san gerrymandering cannot be “politically neutral” or

“manageable.” Ante, at 19; see supra, at 14. Courts, the

majority argues, will have to choose among contested

notions of electoral fairness. (Should they take as the

ideal mode of districting proportional representation,

many competitive seats, adherence to traditional district-

ing criteria, or so forth?) See ante, at 16–19. And even

once courts have chosen, the majority continues, they will

have to decide “[h]ow much is too much?”—that is, how

much deviation from the chosen “touchstone” to allow?

Ante, at 19–20. In answering that question, the majority

surmises, they will likely go far too far. See ante, at 15.

So the whole thing is impossible, the majority concludes.

To prove its point, the majority throws a bevy of question

marks on the page. (I count nine in just two paragraphs.

See ante, at 19–20.) But it never tries to analyze the

serious question presented here—whether the kind of

standard developed below falls prey to those objections, or

instead allows for neutral and manageable oversight. The

answer, as you’ve already heard enough to know, is the

latter. That kind of oversight is not only possible; it’s been

done.

Consider neutrality first. Contrary to the majority’s

suggestion, the District Courts did not have to—and in

fact did not—choose among competing visions of electoral

fairness. That is because they did not try to compare the

State’s actual map to an “ideally fair” one (whether based

on proportional representation or some other criterion).

Instead, they looked at the difference between what the

State did and what the State would have done if politi-

cians hadn’t been intent on partisan gain. Or put differ-

ently, the comparator (or baseline or touchstone) is the

result not of a judge’s philosophizing but of the State’s own

Cite as: 588 U. S. ____ (2019) 23

KAGAN, J., dissenting

characteristics and judgments. The effects evidence in

these cases accepted as a given the State’s physical geog-

raphy (e.g., where does the Chesapeake run?) and political

geography (e.g., where do the Democrats live on top of

each other?). So the courts did not, in the majority’s

words, try to “counteract ‘natural’ gerrymandering caused,

for example, by the urban concentration of one party.”

Ante, at 19. Still more, the courts’ analyses used the

State’s own criteria for electoral fairness—except for

naked partisan gain. Under their approach, in other

words, the State selected its own fairness baseline in the

form of its other districting criteria. All the courts did was

determine how far the State had gone off that track be-

cause of its politicians’ effort to entrench themselves in

office.

The North Carolina litigation well illustrates the point.

The thousands of randomly generated maps I’ve men-

tioned formed the core of the plaintiffs’ case that the North

Carolina plan was an “extreme[ ] outlier.” Rucho, 318

F. Supp. 3d, at 852 (internal quotation marks omitted); see

supra, at 18–20. Those maps took the State’s political

landscape as a given. In North Carolina, for example,

Democratic voters are highly concentrated in cities. That

fact was built into all the maps; it became part of the

baseline. See Rucho, 318 F. Supp. 3d, at 896–897. On top

of that, the maps took the State’s legal landscape as a

given. They incorporated the State’s districting priorities,

excluding partisanship. So in North Carolina, for exam-

ple, all the maps adhered to the traditional criteria of

contiguity and compactness. See supra, at 19–20. But the

comparator maps in another State would have incorpo-

rated different objectives—say, the emphasis Arizona

places on competitive districts or the requirement Iowa

imposes that counties remain whole. See Brief for Math-

ematicians et al. as Amici Curiae 19–20. The point is that

the assemblage of maps, reflecting the characteristics and

24 RUCHO v. COMMON CAUSE

KAGAN, J., dissenting

judgments of the State itself, creates a neutral baseline

from which to assess whether partisanship has run amok.

Extreme outlier as to what? As to the other maps the

State could have produced given its unique political geog-

raphy and its chosen districting criteria. Not as to the

maps a judge, with his own view of electoral fairness,

could have dreamed up.

The Maryland court lacked North Carolina’s fancy

evidence, but analyzed the gerrymander’s effects in much

the same way—not as against an ideal goal, but as against

an ex ante baseline. To see the difference, shift gears for a

moment and compare Maryland and Massachusetts—both

of which (aside from Maryland’s partisan gerrymander)

use traditional districting criteria. In those two States

alike, Republicans receive about 35% of the vote in

statewide elections. See Almanac of American Politics

2016, at 836, 880. But the political geography of the

States differs. In Massachusetts, the Republican vote is

spread evenly across the State; because that is so, district-

ing plans (using traditional criteria of contiguity and

compactness) consistently lead to an all-Democratic con-

gressional delegation. By contrast, in Maryland, Republi-

cans are clumped—into the Eastern Shore (the First Dis-

trict) and the Northwest Corner (the old Sixth). Claims of

partisan gerrymandering in those two States could come

out the same way if judges, à la the majority, used their

own visions of fairness to police districting plans; a judge

in each State could then insist, in line with proportional

representation, that 35% of the vote share entitles citizens

to around that much of the delegation. But those suits

would not come out the same if courts instead asked: What

would have happened, given the State’s natural political

geography and chosen districting criteria, had officials not

indulged in partisan manipulation? And that is what the

District Court in Maryland inquired into. The court did

not strike down the new Sixth District because a judicial

Cite as: 588 U. S. ____ (2019) 25

KAGAN, J., dissenting

ideal of proportional representation commanded another

Republican seat. It invalidated that district because the

quest for partisan gain made the State override its own

political geography and districting criteria. So much,

then, for the impossibility of neutrality.

The majority’s sole response misses the point. Accord-

ing to the majority, “it does not make sense to use” a

State’s own (non-partisan) districting criteria as the base-

line from which to measure partisan gerrymandering

because those criteria “will vary from State to State and

year to year.” Ante, at 27. But that is a virtue, not a

vice—a feature, not a bug. Using the criteria the State

itself has chosen at the relevant time prevents any judicial

predilections from affecting the analysis—exactly what the

majority claims it wants. At the same time, using those

criteria enables a court to measure just what it should: the

extent to which the pursuit of partisan advantage—by

these legislators at this moment—has distorted the State’s

districting decisions. Sure, different non-partisan criteria

could result, as the majority notes, in different partisan

distributions to serve as the baseline. Ante, at 28. But

that in itself raises no issue: Everyone agrees that state

officials using non-partisan criteria (e.g., must counties be

kept together? should districts be compact?) have wide

latitude in districting. The problem arises only when

legislators or mapmakers substantially deviate from the

baseline distribution by manipulating district lines for

partisan gain. So once again, the majority’s analysis

falters because it equates the demand to eliminate parti-

san gerrymandering with a demand for a single partisan

distribution—the one reflecting proportional representa-

tion. See ante, at 16–17. But those two demands are

different, and only the former is at issue here.

The majority’s “how much is too much” critique fares no

better than its neutrality argument. How about the fol-

lowing for a first-cut answer: This much is too much. By

26 RUCHO v. COMMON CAUSE

KAGAN, J., dissenting

any measure, a map that produces a greater partisan

skew than any of 3,000 randomly generated maps (all with

the State’s political geography and districting criteria built

in) reflects “too much” partisanship. Think about what I

just said: The absolute worst of 3,001 possible maps. The

only one that could produce a 10–3 partisan split even as

Republicans got a bare majority of the statewide vote.

And again: How much is too much? This much is too

much: A map that without any evident non-partisan dis-

tricting reason (to the contrary) shifted the composition of

a district from 47% Republicans and 36% Democrats to

33% Republicans and 42% Democrats. A map that in 2011

was responsible for the largest partisan swing of a con-

gressional district in the country. See Lamone, 348

F. Supp. 3d, at 519. Even the majority acknowledges that

“[t]hese cases involve blatant examples of partisanship

driving districting decisions.” Ante, at 27. If the majority

had done nothing else, it could have set the line here.

How much is too much? At the least, any gerrymanders as

bad as these.

And if the majority thought that approach too case-

specific, see ante, at 28, it could have used the lower

courts’ general standard—focusing on “predominant”

purpose and “substantial” effects—without fear of inde-

terminacy. I do not take even the majority to claim that

courts are incapable of investigating whether legislators

mainly intended to seek partisan advantage. See ante, at

19–20 (focusing on the difficulty of measuring effects).

That is for good reason. Although purpose inquiries carry

certain hazards (which courts must attend to), they are a

common form of analysis in constitutional cases. See, e.g.,

Miller v. Johnson, 515 U. S. 900, 916 (1995); Church of

Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 533

(1993); Washington v. Davis, 426 U. S. 229, 239 (1976).

Those inquiries would be no harder here than in other

contexts.

Cite as: 588 U. S. ____ (2019) 27

KAGAN, J., dissenting

Nor is there any reason to doubt, as the majority does,

the competence of courts to determine whether a district

map “substantially” dilutes the votes of a rival party’s

supporters from the everything-but-partisanship baseline

described above. (Most of the majority’s difficulties here

really come from its idea that ideal visions set the base-

line. But that is double-counting—and, as already shown,

wrong to boot.) As this Court recently noted, “the law is

full of instances” where a judge’s decision rests on “esti-

mating rightly . . . some matter of degree”—including the

“substantial[ity]” of risk or harm. Johnson v. United

States, 576 U. S. ___, ___ (2015) (slip op., at 12) (internal

quotation marks omitted); see, e.g., Ohio v. American

Express Co., 585 U. S. ___, ___ (2018) (slip op., at 9) (de-

termining “substantial anticompetitive effect[s]” when

applying the Sherman Act); United States v. Davis, ante,

at 7–10 (KAVANAUGH, J., dissenting) (cataloging countless

statutes requiring a “substantial” risk of harm). The

majority is wrong to think that these laws typically (let

alone uniformly) further “confine[ ] and guide[ ]” judicial

decisionmaking. Ante, at 28. They do not, either in them-

selves or through “statutory context.” Ibid. To the extent

additional guidance has developed over the years (as

under the Sherman Act), courts themselves have been its

author—as they could be in this context too. And contrary

to the majority’s suggestion, see ibid., courts all the time

make judgments about the substantiality of harm without

reducing them to particular percentages. If courts are no

longer competent to do so, they will have to relinquish,

well, substantial portions of their docket.

And the combined inquiry used in these cases set the

bar high, so that courts could intervene in the worst parti-

san gerrymanders, but no others. Or to say the same

thing, so that courts could intervene in the kind of ex-

treme gerrymanders that nearly every Justice for decades

has thought to violate the Constitution. See supra, at 13.

28 RUCHO v. COMMON CAUSE

KAGAN, J., dissenting

Illicit purpose was simple to show here only because poli-

ticians and mapmakers thought their actions could not be

attacked in court. See Rucho, 318 F. Supp. 3d, at 808

(quoting Lewis’s statements to that effect). They therefore

felt free to openly proclaim their intent to entrench their

party in office. See supra, at 4–6. But if the Court today

had declared that behavior justiciable, such smoking guns

would all but disappear. Even assuming some officials

continued to try implementing extreme partisan gerry-

manders,5 they would not brag about their efforts. So

plaintiffs would have to prove the intent to entrench

through circumstantial evidence—essentially showing

that no other explanation (no geographic feature or non-

partisan districting objective) could explain the districting

plan’s vote dilutive effects. And that would be impossible

unless those effects were even more than substantial—

unless mapmakers had packed and cracked with abandon

in unprecedented ways. As again, they did here. That the

two courts below found constitutional violations does not

mean their tests were unrigorous; it means that the con-

duct they confronted was constitutionally appalling—by

even the strictest measure, inordinately partisan.

The majority, in the end, fails to understand both the

plaintiffs’ claims and the decisions below. Everything in

today’s opinion assumes that these cases grew out of a

“desire for proportional representation” or, more generally

phrased, a “fair share of political power.” Ante, at 16, 21.

And everything in it assumes that the courts below had to

(and did) decide what that fair share would be. But that is

——————

5 A decision of this Court invalidating the North Carolina and Mary-

land gerrymanders would of course have curbed much of that behavior.

In districting cases no less than others, officials respond to what this

Court determines the law to sanction. See, e.g., Charles & Fuentes-

Rohwer, Judicial Intervention as Judicial Restraint, 132 Harv. L. Rev.

236, 269 (2018) (discussing how the Court’s prohibition of racial gerry-

manders affected districting).

Cite as: 588 U. S. ____ (2019) 29

KAGAN, J., dissenting

not so. The plaintiffs objected to one specific practice—the

extreme manipulation of district lines for partisan gain.

Elimination of that practice could have led to proportional

representation. Or it could have led to nothing close.

What was left after the practice’s removal could have been

fair, or could have been unfair, by any number of

measures. That was not the crux of this suit. The plain-

tiffs asked only that the courts bar politicians from en-

trenching themselves in power by diluting the votes of

their rivals’ supporters. And the courts, using neutral and

manageable—and eminently legal—standards, provided

that (and only that) relief. This Court should have

cheered, not overturned, that restoration of the people’s

power to vote.

III

This Court has long understood that it has a special

responsibility to remedy violations of constitutional rights

resulting from politicians’ districting decisions. Over 50

years ago, we committed to providing judicial review in

that sphere, recognizing as we established the one-person-

one-vote rule that “our oath and our office require no less.”

Reynolds, 377 U. S., at 566. Of course, our oath and our

office require us to vindicate all constitutional rights. But

the need for judicial review is at its most urgent in cases

like these. “For here, politicians’ incentives conflict with

voters’ interests, leaving citizens without any political

remedy for their constitutional harms.” Gill, 585 U. S., at

___ (KAGAN, J., concurring) (slip op., at 14). Those harms

arise because politicians want to stay in office. No one can

look to them for effective relief.

The majority disagrees, concluding its opinion with a

paean to congressional bills limiting partisan gerryman-

ders. “Dozens of [those] bills have been introduced,” the

majority says. Ante, at 33. One was “introduced in 2005

and has been reintroduced in every Congress since.” Ibid.

30 RUCHO v. COMMON CAUSE

KAGAN, J., dissenting

And might be reintroduced until the end of time. Because

what all these bills have in common is that they are not

laws. The politicians who benefit from partisan gerry-

mandering are unlikely to change partisan gerrymander-

ing. And because those politicians maintain themselves in

office through partisan gerrymandering, the chances for

legislative reform are slight.

No worries, the majority says; it has another idea. The

majority notes that voters themselves have recently ap-

proved ballot initiatives to put power over districting in

the hands of independent commissions or other non-

partisan actors. See ante, at 32. Some Members of the

majority, of course, once thought such initiatives unconsti-

tutional. See Arizona State Legislature, 576 U. S., at ___

(ROBERTS, C. J., dissenting) (slip op., at 1). But put that

aside. Fewer than half the States offer voters an oppor-

tunity to put initiatives to direct vote; in all the rest (in-

cluding North Carolina and Maryland), voters are depend-

ent on legislators to make electoral changes (which for all

the reasons already given, they are unlikely to do). And

even when voters have a mechanism they can work them-

selves, legislators often fight their efforts tooth and nail.

Look at Missouri. There, the majority touts a voter-

approved proposal to turn districting over to a state de-

mographer. See ante, at 32. But before the demographer

had drawn a single line, Members of the state legislature

had introduced a bill to start undoing the change. See Mo.

H. J. Res. 48, 100th Gen. Assembly, 1st Reg. Sess. (2019).

I’d put better odds on that bill’s passage than on all the

congressional proposals the majority cites.

The majority’s most perplexing “solution” is to look to

state courts. Ante, at 30. “[O]ur conclusion,” the majority

states, does not “condemn complaints about districting to

echo into a void”: Just a few years back, “the Supreme

Court of Florida struck down that State’s congressional

districting plan as a violation” of the State Constitution.

Cite as: 588 U. S. ____ (2019) 31

KAGAN, J., dissenting

Ante, at 31; see League of Women Voters of Florida v.

Detzner, 172 So. 3d 363 (2015). And indeed, the majority

might have added, the Supreme Court of Pennsylvania

last year did the same thing. See League of Women Voters,

___ Pa., at ___, 178 A. 3d, at 818. But what do those

courts know that this Court does not? If they can develop

and apply neutral and manageable standards to identify

unconstitutional gerrymanders, why couldn’t we?6

We could have, and we should have. The gerrymanders

here—and they are typical of many—violated the constitu-

tional rights of many hundreds of thousands of American

citizens. Those voters (Republicans in the one case, De-

mocrats in the other) did not have an equal opportunity to

participate in the political process. Their votes counted for

far less than they should have because of their partisan

affiliation. When faced with such constitutional wrongs,

courts must intervene: “It is emphatically the province

and duty of the judicial department to say what the law

is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). That

is what the courts below did. Their decisions are worth a

read. They (and others that have recently remedied simi-

lar violations) are detailed, thorough, painstaking. They

——————

6 Contrary to the majority’s suggestion, state courts do not typically

have more specific “standards and guidance” to apply than federal

courts have. Ante, at 31. The Pennsylvania Supreme Court based its

gerrymandering decision on a constitutional clause providing only that

“elections shall be free and equal” and no one shall “interfere to prevent

the free exercise of the right of suffrage.” League of Women Voters, ___

Pa., at ___–___, 178 A. 3d, at 803–804 (quoting Pa. Const., Art. I, §5).

And even the Florida “Free Districts Amendment,” which the majority

touts, says nothing more than that no districting plan “shall be drawn

with the intent to favor or disfavor a political party.” Fla. Const., Art.

III, §20(a). If the majority wants the kind of guidance that will keep

courts from intervening too far in the political sphere, see ante, at 15,

that Amendment does not provide it: The standard is in fact a good deal

less exacting than the one the District Courts below applied. In any

event, only a few States have a constitutional provision like Florida’s,

so the majority’s state-court solution does not go far.

32 RUCHO v. COMMON CAUSE

KAGAN, J., dissenting

evaluated with immense care the factual evidence and

legal arguments the parties presented. They used neutral

and manageable and strict standards. They had not a

shred of politics about them. Contra the majority, see

ante, at 34, this was law.

That is not to deny, of course, that these cases have

great political consequence. They do. Among the amicus

briefs here is one from a bipartisan group of current and

former Members of the House of Representatives. They

describe all the ways partisan gerrymandering harms our

political system—what they call “a cascade of negative

results.” Brief as Amicus Curiae 5. These artificially

drawn districts shift influence from swing voters to party-

base voters who participate in primaries; make biparti-

sanship and pragmatic compromise politically difficult or

impossible; and drive voters away from an ever more

dysfunctional political process. See id., at 5–6. Last year,

we heard much the same from current and former state

legislators. In their view, partisan gerrymandering has

“sounded the death-knell of bipartisanship,” creating a

legislative environment that is “toxic” and “tribal.” Brief

as Amicus Curiae in Gill v. Whitford, O. T. 2016, No. 16–

1161, pp. 6, 25. Gerrymandering, in short, helps create

the polarized political system so many Americans loathe.

And gerrymandering is, as so many Justices have em-

phasized before, anti-democratic in the most profound

sense. See supra, at 7–8. In our government, “all political

power flows from the people.” Arizona State Legislature,

576 U. S., at ___ (slip op., at 35). And that means, as

Alexander Hamilton once said, “that the people should

choose whom they please to govern them.” 2 Debates on

the Constitution 257 (J. Elliot ed. 1891). But in Maryland

and North Carolina they cannot do so. In Maryland,

election in and election out, there are 7 Democrats and 1

Republican in the congressional delegation. In North

Carolina, however the political winds blow, there are 10

Cite as: 588 U. S. ____ (2019) 33

KAGAN, J., dissenting

Republicans and 3 Democrats. Is it conceivable that

someday voters will be able to break out of that prefabri-

cated box? Sure. But everything possible has been done

to make that hard. To create a world in which power does

not flow from the people because they do not choose their

governors.

Of all times to abandon the Court’s duty to declare the

law, this was not the one. The practices challenged in

these cases imperil our system of government. Part of the

Court’s role in that system is to defend its foundations.

None is more important than free and fair elections. With

respect but deep sadness, I dissent.