Slip Opinion — League of United Latin American Citizens v. Perry

~.

(Slap Opiansen! OCTOBER TERM, 2005 l

Syllabus

NOTE: Where ot as feastble, a syllabus (headmete: wall be released. as os

being done im connection with this case at the time the opanion os ussned

The svilabus constututes no part of the opamon of the Court bat has been

prepare | by the Reperter af Deestoms for the comvenrmenee of the reader

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SUPREME COURT OF THE UNITED STATES

Syllabus

LEAGUE OF UNITED LATIN AMERICAN CITIZENS

~ BT AL. vc. PERRY, GOVERNOR OF TEXAS, ET AL.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

LASTERN DISTRICT OF TEXAS

No. 05-204. Argued March 1, 2006—Decided June 28, 2006*

The 1990 census resulted in a 3-seat increase over the 27 seats previ-

ously allotted the Texas congressional delegation. Although the De-

mocratic Party then controlled 19 of those 27 seats. as well as both

state legislative houses and the governorship, change was im the air:

The Republican Party had received 17% of the 1990 statewide vote,

while the Democrats had received only 51%. Faced with a possible

Republican ascent to majority status, the legislature drew a congres-

sional redistricting plan that favored Democratic candidates. The

Republicans challenged the 1991 Plan as an unconstitutional parti-

san gerry mander, but to no avail.

The 2000 census authorized two additional seats for the Texas

delegation. The Republicans then controlled the governorship and

the State Senate, but did not vet control the State Llouse of Repre-

sentatives. So constituted, the legislature was unable to pass a redis-

tricting scheme, resulting in htigation and the necessity of a court-

ordered plan to comply with+he_L—S.-Constitution'’s one-person, one-

vote requirement. Conscious that the primary responsibility for

drawing congressional districts lies with the political branches of

government, and hesitant to undo the work of one political party for

the benefit of another. the three-judge Federal District Court sought

to apply only “neutral” redistricting standards when drawing Plan

L1I51C, including placing the two new seats in high-growth areas, fol-

*Together with No. 05-254. Travis County, Texas, etal. v. Perry,

Governor of Texas, et al., No. 05-276, Jackson et al. v. Perry, Governor

of Texas, et al., and No. 05-439, G/ Forum of Texas el al. v. Perry, Gov-

ernor of Texas, et al., also on appeal from the same court.

2

LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

PERRY

Syllabus

lowing county and voting precinct lines, and avoiding the pairing of

incumbents. Under Plan 1151C, the 2002 congressional elections re-

sulted in a 17-to-15 Democratic majority in the Texas delegation,

compared to a 59% to 40% Republican majority in votes for statewide

office in 2000, thus leaving the 1991 Democratic gerrymander largely

in place.

In 2003, however, Texas Republizane gained control of both houses

of the legislature and set out to increase Republican representation

in the congressional delegation. After a protracted partisan struggle.

the legislature enacted a new congressional districting map, Plan

1374C. In the 2004 congressional elections, Republicans won 21

seats to the Democrats’ 11, while also obtaining 58% of the vote in

statewide races against the Democrats’ 41%. Soon after Plan 1374C

was enacted, appellants challenged it in court, alleging a host of con-

stitutional and statutory violations. In 2004 the District Court en-

tered judgment for appellees, but this Court vacated the decision and

remanded for consideration in light of Vieth v. Jubelirer, 541 U.S. 267.

On remand, the District Court, believing the scope of its mandate

was limited to questions of political gerrymandering. again rejected

appellants’ claims.

Held: The judgment is affirmed in part, reversed in part, and vacated in

part, and the cases are remanded.

399 F. Supp. 2d 756, affirmed in part, reversed in part, vacated in part,

and remanded.

JUSTICE KENNEDY delivered the opinion of the Court with respect to

Parts LI—A and III, concluding:

1. This Court held, in Davis v. Bandemer, 478 U.S. 109, 118-127,

that an equal protection challenge to a political gerrymander pre-

sents a justiciable case or controversy, although it could not agree on

what substantive standard to apply, compare id., at 127-137, with

id., at 161-162. That disagreement persists. The \V eth plurality

would have held such challenges nonjusticiable political questions,

but a majority declined to do so, see 541 U.S., at 306, 317, 343, 355.

Justiciability is not revisited here. At issue is whether appellants of-

fer a manageable, reliable measure of fairness for determining:

whether a partisan gerrymander is unconstitutional. P. 7.

2. Texas’ redrawing of District 23's lines amounts to vote dilution

violative of §2 of the Voting Rights Act of 1965. Pp. 17-36.

(a) Plan 1374C’s changes to District 23 served the dual goals of

increasing Republican seats and protecting the incumbent Republi-

can against an increasingly powerful Latino population that threat-

ened to oust him, with the additional political nuance that he would

be reelected in a district that had a Latino majority as to voting age

population. though not a Latino majority as to citizen voting age

Cite as: 548 U-S.__ (20006) 3

Syllabus

population or an effective Latino voting majority. The District 23

changes required adjustments elsewhere, so the State created new

District 25 to avoid retrogression under §5 of the Act. Pp. 17-18.

(b) A State violates §2 “if, based on the totality of circumstances,

it is shown that the political processes leading to nomination or elec-

tion... are not [as] equally open to... members of [a racial group as

they are to] other members of the electorate.” 42 U.S. C. §1973(b).

Thornburg v. Gingles, 478 U.S. 30, 50-51, identified three threshold

conditions for establishing a §2 violation: (1) the racial group must be

“sufficiently large and geographically compact to constitute a major-

ity in a single-member district’; (2) the group must be “politically co-

hesive”; and (3) the white majority must “vot[e] sufficiently as a bloc

to enable it ... usually to defeat the minority’s preferred candidate.”

The legislative history identifies factors that courts can use, once all

three threshold requirements are met, in interpreting §2’s “totality of

circumstances” standard, including the State's history of voting-

related discrimi .tion, the extent to which voting is racially polar-

ized, and the extent to which the State has used voting practices or

procedures that tend to enhance the opportunity for discrimination

against the minority group. See id., at 44-45. Another relevant con-

sideration is whether the number of districts in which the minority

group forms an effective majority is roughly proportional to its share

of the population in the relevant area. Johnson vy. De Grandy, 512

U.S. 997, 1006. The district court’s determination whether the §2

requirements are satisfied must be upheld unless clearly erroneous.

See Gingles, supra, at 78-79. Where “the ultimate finding of dilu-

tion” is based on “a misreading of the governing law,” however, there

is reversible error. De Grandy, supra, at 1022. Pp. 18-20.

(c) Appellants have satisfied all three Gingles requirements as to

District 23, and the creation of new District 25 does not remedy the

problem.

The second and third Gingles factors—Latino cohesion, majority

bloc voting—are present, given the District Court's finding of racially

polarized voting in the District 23 and throughout the State. As to

the first Gingles precondition—that the minority group be large and

compact enough to constitute a majority in a single-member district,

478 U.S., at 50—appellants have established that Latinos could have

had an opportunity district in District 23 had its lines not been al-

tered and that they do not have one now. They constituted a major-

ity of the citizen voting age population in [istrict 23 under Plan

1151C. The District Court suggested incorrectly that the district was

not a Latino opportunity district in 2002 simply because the incum-

bent prevailed. The fact that a group does not win elections does not

resolve the vote dilution issue. De Grandy, 512 U.S., at 1014, n. 11.

4

LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

PERRY

Syllabus

In old District 23 the increase in Latino voter registration and overall

population, the concomitant rise in Latino voting power in each suc-

cessive election, the near victory of the Latino candidate of choice in

2002, and the resulting threat to the incumbent's continued election

were the very reasons the State redrew the district lines. Since the

redistricting prevented the immediate success of the emergent Latino

majority in District 23, there was a denial of opportunity in the real

sense of that term. Plan 1374C’s version of District 23, by contrast, is

unquestionably not a Latino opportunity district. That Latinos are

now a bare majority of the district's voting-age population is not dis-

positive, since the relevant numbers must account for citizenship in

order to determine the group's opportunity to elect candidates, and

Latinos do not now have a citizen voting-age majority in the district.

The State's argument that it met its §2 obligations by creating new

District 25 as an offsetting opportunity district is rejected. In a dis-

trict line-drawing challenge, “the first Gingles condition requires the

possibility of creating more than the existing number of reasonably

compact districts with a sufficiently large minority population to elect

candidates of its choice.” Id., at 1008. The District Court's finding

that the current plan contains six Latino opportunity districts and

that seven reasonably compact districts, as proposed by appellant GI

Forum, could not be drawn was not clearly erroneous. However, the

court failed to perform the required compactness inquiry between the

number of Latino opportunity districts under the challenger's pro-

posal of reinstating Plan 1151C and the “existing number of reasona-

bly compact districts.” /bid. Section 2 does not forbid the creation of

a noncompact majority-minority district, Bush v. Vera, 517 U.S. 952,

999, but such a district cannot remedy a violation elsewhere in the

State, see Shaw v. Hunt, 517 U.S. 899, 916. The lower court recog-

nized there was a 300-mile gap between the two Latino communities

in District 25, and a similarly large gap between the needs and inter-

ests of the two groups. The court's conclusion that the relative

smoothness of the district lines made the district compact, despite

this combining of discrete communities of interest, is inapposite be-

cause the court analyzed the issue only in the equal protection con-

text, where compactness focuses on the contours of district lines to

determine whether race was the predominant factor in drawing those

lines. See Miller v. Johnson, 515 U.S. 900, 916-917. Under §2, by

contrast, the injury is vote dilution, so the compactness inquiry con-

siders “the compactness of the minority population, not .. . the com-

pactness of the contested district.” Vera, 517 U.S., at 997. A district

that “reaches out to grab small and apparently isolated minority com-

munities” is not reasonably compact. /d., at 979. The lower court's

findings regarding the different characteristics, needs, and interests

Cite as: 48U.S. __ (2006) : 5

Syllabus

of the two widely scattered Latino communities in District 23 are

well supported and uncontested. The enormous geographical dis-

tances separating the two communities, coupled with the disparate

needs and interests of these populations—not either factor alone—

renders District 25 noncompact for §2 purposes. Therefore, Plan

1374C contains only five reasonably compatt Latino opportunity dis-

tricts, one fewer than Plan 1151C. Pp. 20-29.

(d) The totality of the circumstances demonstrates a §2 violation.

The relevant proportionality inquiry, see De Grandy, 512 U.S., at

1000, compares the percentage of total districts that are Latino op-

portunity districts with the Latino share of the citizen voting-age

population. The State's contention that proportionality should be de-

cided on a regional basis is rejected in favor of appellants’ assertion

that their claim requires a statewide analysis because they have al-

leged statewide vote dilution based on a statewide plan. Looking

statewide. there are 32 congressional districts. The five reasonably

compact Latino opportunity districts amount to roughly 16% of the

total, while Latinos make up 22% of Texas’ citizen voting-age popula-

tion. Latinos are, therefore, two districts shy of proportional repre-

sentation. Even deeming this disproportionality insubstantial would

not overcome the other evidence of vote dilution for Latinos in Dis-

trict 23. The changes there undermined the progress of a racial

group that has been subject to significant voting-related discrimina-

tion and that was becoming increasingly politically active and cohe-

sive. Cf., e.g., id., at 1014. Against this background, the Latinos’. di-

minishing electoral support for the incumbent indicates their belief

he was unresponsive to their particularized needs. In essence, the

State took away their opportunity because they were about to exer-

cise it. Even accepting the District Court's finding that the State's

action was taken primarily for political, not racial, reasons, the re-

drawing of District 23's lines was damaging to its Latino voters. The

State not only made fruitless the Latinos’ mobilization efforts but

also acted against those Latinos who were becoming most politically

active. Although incumbency protection can be a legitimate factor in

districting, see Aarcher v. Daggett, 462 U.S. 725, 740, not all of its

forms are in the interests of the constituents. If, as here, such protec-

tion means excluding some voters from the district simply because

they are likely to vote against the officeholder, the change is to bene-

fit the officeholder, not the voters. This policy, whatever its validity

in the political realm, cannot justify the effect on Latino voters. See

Gingles, supra, at 45. Pp. 29-36.

(ce) Because Plan 1374C violates §2 in its redrawing of District

23. appellants’ First Amendment and equal protection claims with

respect to that district need not be addressed. Their equal protection

LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

PERRY

Syllabus

claim as to the drawing of District 25 need not be confronted because

that district will have to be redrawn to remedy the District 23 viola-

tion. Pp. 36-37.

JUSTICE KENNEDY concluded in Part II that Sie appellants

have established no legally impermissible use of poli ical classifica-

tions, they state no claim on which relief may be granted as to their

contention that Texas’ statewide redistricting is an unconstitutional

political gerrymander. Justice SOUTER and JUSTICE GINSBURG joined

Part II-D. Pp. 7-15.

(a) Article I of the Constitution, }§2 and 4, gives “the States pri-

mary responsibility for apportionment of their ... congressional .. .

districts,” Growe v. Emison, 507 U.S. 25, 34, but §4 also permits Con-

gress to set further requirements. Neither the Constitution nor Con-

gress has stated any explicit prohibition of mid-decade redistricting to

change districts drawn earlier in conformance with a decennial census.

Although the legisiative branch plays the primary role in congres-

sional redistricting. courts have an important role when a districting

plan violates the Constitution. See, e.g., Wesberry v. Sanders, 376

U.S. 1. That the federal courts sometimes must order legislative redis-

tricting, however. does not shift the primary responsibility away from

legislative bodies, see, e.g., Wise v. Lipscomb, 437 U.S. 535, 540, who

are free to replace court-mandated remedial plans by enacting redis-

tricting plans of their own, see, e.g., Upham v. Seamon, 456 U.S. 37,

44. Judicial respect for legislative plans, however, cannot justify leg-

islative reliance on improper criteria for districting determinations.

Pp. 7—10.

(b) Appellants claim unpersuasively that a decision to effect mid-

decennial redistricting, when solely motivated by partisan objectives.

presumptively violates equal protection and the First Amendment

because it serves no legitimate public purpose and burdens one group

because of its political opinions and affiliation. For a number of rea-

sons, that test is unconvincing. There is some merit to the State's as-

sertion that partisan gain was not the sole motivation for replacing

Plan 1151C: The contours of some contested district lines seem to

have been drawn based on more mundane and local interests, and a

number of line-drawing requests by Democratic state legislators were

honored. Moreover, a successful test for identifying unconstitutional

partisan gerrymandering must do what appellants sole-motivation

theory explicitly disavows: show a burden, as measured by a reliable

standard, on the complainants representational rights. See Vieth,

supra, at 292-295, 307-308. Appellants’ sole-intent standard is no

more compelling when it is linked to the circumstance that Plan

1374C is “mid-decennial legislation. The Constitution's text and

structure and this Court's cases indicate there is nothing inherently

-

Cite as: 548 U.S. __ (2006) 7

Syllabus

suspect about a legislature's decision to replace mid-decade a court-

ordered plan with one of its own. Even if there were, the fact of mid-

decade redistricting alone is no sure indication of unlawful political

gerrymanders. Appellants’ test would leave untouched the 1991

Texas redistricting, which entrenched a party on the verge of minor-

ity status, while striking down the 2003 redistricting plan, which re-

sulted in the majority Republican Party capturing a larger share of

the seats. A test that treats these two similarly effective power plays

in such different ways does not have the reliability appellants ascribe

to it. Pp. 10-14.

(c) Appellants’ political gerry sommdutiee theory that mid-decade re-

districting for exclusively partisan purposes violates the one-person,

one-vote requirement is rejected. Although conceding that States op-

erate under the legal fiction that their plans are constitutionally ap-

portioned throughout a decade, see, e.g., Georgia v. Ashcroft, 539

U.S. 461, 488. n. 2. appellants contend that this fiction should not

provide a safe harbor for a legislature that enacts a voluntary. mid-

decade plan overriding a legal court-drawn plan. This argument mir-

rors appellants’ attack on mid-decennial redistricting solely moti-

vated by partisan considerations and is unsatisfactory for the same

reasons. Their further contention that the legislature intentionally

sought to manipulate population variances when it enacted Plan

1374C is unconvincing because there is no District Court finding to

that effect, and they present no specific evidence to support this seri-

ovs allegation of bad faith. Because they have not demonstrated that

the legislature's decision to enact Plan 1374C constitutes~a violation

of the equal-population requirement, their subsidiary reliance on

Larios v. Cox. 300 F. Supp. 2d 1320, summarily affd, 542 U.S. 947, is

unavailing. Pp. 14-16.

JUSTICE KENNEDY, joined by THE CHIEF JUSTICE and JuUsTICE ALITO,

concluded in Part IV that the Dallas area redistricting does not vio-

late §2 of the Voting Rights Act. Appellants allege that the Dallas

changes dilute African-American voting strength because an African-

. American minority effectively controlled District 24 under Plan

1151C. However, before Plan 1374C, District 24 had elected an An-

glo Democrat to Congress in every election since 1978. Since then,

moreover, the incumbent has had no opposition in any of his primary

elections, and African-Americans have consistently voted for him.

African-Americans were the second-largest racial group in the dis-

trict after Anglos, but had only 25.7% of the citizen voting age popu-

lation. Even assuming that the first Gingles prong can accommodate

appellants’ assertion that a §2 claim may be stated for a racial group

that makes up less than 50% of the population, see. e.g., De Grandy,

supra, at 1009, they must show they constitute “a sufficiently large

LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

PERRY

Syllabus

minority to elect their candidate of choice with the assistance of

cross-over votes,” Voinovich v. Quiller, 507 U.S. 146, 158. The District

Court committed no clear error in rejecting questionable evidence

that Afriean-Americans have the ability to elect their candidate of

choice in favor of other evidence that an African-American candidate

of choice would not prevail. See Anderson v. Bessemer City, 470 U.S.

564, 574. That African-Americans had influence in the district does

not suffice to state a §2 claim. If it did, it would unnecessarily infuse

race into virtually every redistricting, raising serious constitutional

questions. See Georgia v. Ashcroft, 539 U. S. 461, 491. Id., at 480, 482,

distinguished. Appellants do not raise a dist rict-specific political ger-

rymandering claim against District 24. Pp. 37-41.

THe CHIEF JUSTICE, joined by JUSTICE ALITO, agreed that appellants

have not provided a reliable standard for identifying unconstitutional

political gerrymanders, but noted that the question whether any such

standard exists—i.e., whether a challenge to such a gerrymander

presents a justiciable case or controversy—has not been argued in

these cases. THE CHIEF JUSTICE and Justice ALITO therefore take no

position on that question, which has divided the Court. see Vieth v.

Jubelirer, 541 U.S. 267, and join the plurality’s Part II disposition

without specifying whether appellants have failed to state a claim on

which relief can be granted or failed to present a justiciable contro-

versy. Pp. 1-2.

Justice SCALIA, joined by Justice THOMAS, concluded that appel-

lants’ claims of unconstitutional political gerrymandering do not pre-

sent a justiciable case or controversy, see Vieth v. Jubelirer, 541 U.S.

267, 271-306 (plurality opinion), and that their vote-dilution claims

premised on §2 of the Voting Rights Act of 1965 lack merit for the

reasons set forth in JUSTICE THOMAS'’s opinion concurring in the

judgment in Holder v. Iall, 512 U.S. 874, 891-946. Reviewing ap-

pellants’ race-based equal protection claims, JUSTICE SCALIA, joined

by THE CHIEF Justice, Justice THOMAS, and JUSTICE ALITO, concluded

that the District Court did not commit clear error in rejecting appel-

lant GI Forum's assertion that the removal of Latino residents from

District 23 constituted intentional vote dilution. JUSTICE SCALIA,

joined by THe CHler Justice, Justice THOMAS, and Justice ALITO,

subjected the intentional creation of District 25 as a majority-

minority district to strict scrutiny and held that standard satisfied

because appellants conceded that the creation of this district was

reasonably necessary to comply with §5 of the Voting Rights Act of

1965, which is a compelling state interest, and did not argue that

Texas did more than that provision required it to do, Pp. 2-11.

KENNEDY, d., announced the judgment of the Court and delivered the

Cite as: K48U.S._ (2006) ; 9

Syllabus

opinion of the Court with respect to Parts Ll—A and III, in which Sre-

VENS, SOUTER, GINSBURG, AND Breyer, JJ., joined, an opinion with re-

spect to Parts | and IV, in which Roperts, C. J., and ALITO, J., joined.

an opinion with respect to Parts [II-B and II-C, and an opinion with

respect to Part II-D, in which SOUTER and GINSBURG, dd., joined. STE-

VENS, J., filed an opinion concurring in part and dissenting in part, in

which BREYER, J., joined as to Parts I and II. Sourer, J., filed an opin-

ion concurring in part and dissenting in part. in which GINSBURG, J.,

joined. BREYER, J., filed an opinion concurring in part and dissenting in

part. Roperts, C. J., filed an opinion concurring in part, concurring in

the judgment in part, and dissenting in part. in which ALITO, J., joined.

Scala, J., filed an opinion concurring in the judgment in part and dis-

senting in part, in which THOMas, J., joined, and in which ROBERTS,

©. J., and ALITo, J., joined as to Part III.

Cite as JIRT_S (2006) 4 1

Chnmon of Kronen yA

NOTICE: This epamen os satyect to fog al reves bedewe peblecatioon an the

prelhemnary prod of the Tneted States Pepeats — Revchers cae repented! |

netify the Reperter of Deesions. Supreme Court ofthe | nated States Wash-

mytien, DC QOS of any Upagrapieecal o@ other femal oops na onde:

that corrections may be made before the pre tmnary print goes to press

SUPREME COURT OF THE UNITED STATES

Nos. 05-204, 05-254, 05-276 and 05-139

LEAGUE OF UNTITED LATIN AMERICAN CITIZENS,

ET AL., APPELLANTS

05-204 v.

RICK PERRY, GOVERNOR OF TEXAS, ET AL.

TRAVIS COUNTY, TEXAS, ET AL., APPELLANTS

05-254 v.

RICK PERRY, GOVERNOR OF TEXAS, bT AL.

EDDIE JACKSON, ET AL., APPELLANTS

05-276 .

RICK PERRY, GOVERNOR OF TEXAS, ET AL.

GI FORUM OF TEXAS, eT AL, APPELLANTS

05-439 ».

RICK PERRY, GOVERNOR OF TEXAS, ET AL.

ON APPEALS FROM THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF TEXAS

jJune 28, 2006]

JUSTICE KENNEDY announced the judgment of the Court

and delivered the opinion of the Court with respect to

Parts I-A and III, an opinion with respect to Parts | and

IV, in which Tite Ciike JUstické and JUSTICE ALITO join,

an opinion with respect to Parts II-B and H—C, and an

opinion with respect to Part II-D, in which JUSTICE

2 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

PERRY

Opinion of KENNEDY, J.

SOUTER and JUSTICE GINSBURG join.

These four consolidated cases are appeals from a judg-

ment entered by the United States District Court for the

Eastern District of Texas. Convened as a three-judge

court under 28 U. S. C. §2284, the court heard appellants’

constitutional and statutory challenges to a 2003 enactment

of the Texas State Legislature-that drew new distric’, lines

for the 32 seats Texas holds in the United States House of

Representatives. (Though appellants do not join each other

as to all claims, for the sake of convenience we refer to

appellants collectively.) In 2004 the court entered judg-

ment for appellees and issued detailed findings of fact and

conclusions of law. Session v. Perry, 298 F.Supp: 2d 451

(per curiam). This Court vacated that decision and re-

manded for consideration in light of Vieth v. Jubelirer, 541

U.S. 267 (2004). 543 U.S. 941 (2004). The District Court

reexamined appellants’ political gerrymandering claims

and, in a second careful opinion, again held for the defen-

dants. Henderson v. Perry, 399 F.Supp. 2d 756 (2005).

These appeals followed, and we noted probable jurisdiction.

546 U.S. __ (20085).

Appellants contend the new plan is an unconstitutional

partisan gerrymander and that the redistricting statewide

violates §2 of the Voting Rights Act of 1965, 79 Stat. 437,

as amended, 42 U.S. C. §1973. Appellants also contend

that the use of race and politics in drawing lines of specific

districts violates the First Amendment and the. Equal

Protection Clause of the Fourteenth Amendment. The

three-judge panel, consisting of Circuit Judge

Higginbotham and District Judges Ward and Rosenthal,

brought considerable experience and expertise to the

instant case, based on their knowledge of the State’s peo-

ple, history, and geography. Judges Higginbotham and

Ward, moreover, had served on the three-judge court that

drew the plan the Texas Legislature replaced in 2003, so

they were intimately familiar with the history and intrica-

‘, Cite as: 448 U.S. (2006) 3

Opinion of KENNEDY, J.

cies of the cases.

We affirm the District Court's dispositions on the state-

wide political gerrymandering claims and the Voting

Rights Act claim against District 24. We reverse and

remand on the Voting Rights Act claim with respect to_

District 23. Because we do not reach appellants’ race-

based equal protection claim or the political gerrymander-

ing claim as to District 23, we vacate the judgment of the

District Court on these claims.

To set out a proper framework for the case, we first

recount the history of the litigation and recent districting

in Texas. An appropriate starting point is not the reap-

portionment in 2000 but the one from the census in 1990.

The 1990 census resulted in a 30-seat congressional

delegation for Texas, an increase of 3 seats over the 27

representatives allotted to the State in the decade before.

See Bush v. Vera, 517 U.S. 952, 956-957 (1996). In 1991

the Texas Legislature drew new district lines. At the

time, the Democratic Party controlled both houses in the

state legislature, the governorship, and 19 of the State's

27 seats in Congress. Yet change appeared to be on the

horizon. In the previous 30 years the Democratic Party's

post-Reconstruction dominance over the Republican Party

had eroded, and by 1990 the Republicans received 47% of

the statewide vote, while the Democrats received 51%.

Henderson, supra, at. 763; Brief for Appellee Perry et al.

in No. 05-204, etc., p.2 (hereinafter Brief for State

Appellees). ‘

Faced with a Republican opposition that could be mov-

ing toward majority status, the state legislature drew a

congressional redistricting plan designed to favor Democ-

ratic candidates. Using then-emerging computer technol-

ogy to draw district lines with artful precision, the legisla-

ture enacted a plan later described as the “shrewdest

4 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v,

PERRY

Opinion of KENNEDY, J.

gerrymander of the 1990s.” M. Barone, R. Cohen, & C.

‘ook, Almanac of American Politics 2002, p. 1448 (2001).

See Henderson, supra, at 767, and n. 47. Although the

1991 plan was enacted by the state legislature, Democ-

ratic Congressman Martin Frost was acknowledged as its

architect. Session, supra, at 482. The 1991 plan “carefully

constructs democratic districts ‘with incredibly convoluted

lines’ and packs ‘heavily Republican’ suburban areas into

just a few districts.” Henderson, supra, at 767, n. 47 (quot-

ing M. Barone & R. Cohen, Almanac of American Politics

2004, p. 1510 (2008) (hereinafter 2004 Almanac)).

Voters who considered this unfair and unlawful treat-

ment sought to invalidate the 1991 plan as an unconstitu-

tional partisan gerrymander, but to no avail. See Terrazas

v. Slagle, 789 F. Supp. 828, 833 (WD Tex. 1992); Terrazas

v. Slagle, 821 F.Supp. 1162, 1175 (WD Tex. 1993). The

1991 plan realized the hopes of Democrats and the fears of

Republicans with respect to the composition of the Texas

congressional delegation. The 1990'S were years of con-

tinued growth for the Texas Republican Party, and by the

end of the decade it was sweeping elections for statewide

office. Nevertheless, despite carrying 59% of the vote in

statewide elections in~2000, the Republicans only won 13

congressional seats to the Democrats’ 17. Henderson,

supra, at 763.

These events likely were not forgotten by either party

when it came time to draw congressional <listricts in con-

formance with the 2000 census and to incorporate two

additional seats for the Texas delegation. The Republican

Party controlled the governorship and the State Senate; it

(lid not yet control the State llouse of Representatives,

however. As so constituted, the legislature was unable to

pass a redistricting scheme, resulting in litigation and the

necessity of a court-ordered plan to comply with the Con-

stitution’s one-person, one-vote requirement. See Bal-

deras v. Texas, Civ. Action No. 6:01CV158 (IED Tex., Nov.

Cite as: 548 U.S. (2006) 5

Opinion of KENNEDY, J.>

14, 2001) (per curiam), summarily affd, 586 U.S. 919

(2002), App. E to Juris. Statement in No. 05-276, p. 202a.

The congressional districting map resulting from the

Balderas \itigation is known as Plan 1151C.

As we have said, two members of the three-judge court

that drew Plan 1151C later served on the three-judge

court that issued the judgment now under review. Thus

we have the benefit of their candid comments concerning

the redistricting approach taken in the Balderas litigation.

Conscious that the primary responsibility for drawing

congressional districts is given to political branches of

government, and hesitant to “und|o] the work of one politi-

cal party for the benefit of another,” the three-judge Bal-

deras court sought to apply “only ‘neutral’ redistricting

standards” when drawing Plan 1151C. Henderson, 399

I’. Supp. 2d, at 768. Once the District. Court applied these

principles—such as placing the two new seats in high-

growth areas, following county and voting precinct lines,

and avoiding the pairing of incumbents—“the drawing

ceased, leaving the map free of further change except to

conform it te one-person, one-vote.” J/bid. Under Plan

1151C, the 2002 congressional elections resulted in a 17-

to-15 Democratic majority in the Texas delegation, com-

pared to a 59% to 40% Republican majority in votes for

statewide office in 2000. Jd., at 763-764. Reflecting on

the Balderas Plan, the District Court in Ilenderson was

candid to acknowledge “[t|he practical effect of this effort

was to leave the 1991 Democratic Party gerrymander

largely in place as a ‘legal’ plan.” /d., at 768.

The continuing influence of a court-drawn map that

“perpetuated much of [the 1991] gerrymander,” ibid., was

not lost on Texas Republicans when, in 2003, they gained

control of the State House of Representatives and, thus,

both houses of the legislature. The Republicans in the

legislature “set out to increase their representation in the

congressional delegation.” Session, 298 I°. Supp. 2d, at

6 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

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Opinion of KreNNEbY. J

471. See also id., at 470 (There is little question but that

the single-minded purpose of the Texas Legislature in

enacting |a new plan] was to gain partisan advantage’).

After a protracted partisan struggle, during which Democ-

ratic legislators left the State for a time to frustrate quo-

rum requirements, the legislature enacted a new congres-

sional districting map in October 2003. It is called Plan

1374C. The 2004 congressional elections did not disap-

point the plan's drafters. Republicans won 21 seats to the

Democrats’ 11, while also obtaining 58% of the vote in

statewide races against the Democrats’ 41%. Henderson,

supra, at. 764.

Soon after Texas enacted Plan 1374C, appellants chal-

lenged it in court, alleging a host of constitutional_and

statutory violations. Initially, the District Court entered

judgment against appellants on all their claims. See

Session, 298 F.Supp. 2d, at 457: id., at 515 (Ward, J.

concurring in part and dissenting in part). Appellants

sought relief here and, after their jurisdictional state-

ments were filed, this Court issued Vieth v. Jubelirer. Our

order vacating the District Court judgment and remand-

ing for consideration in light of Vieth was issued just

weeks before the 2004 elections. See 543 U.S. 941 (ect.

18, 2004). On remand, the District Court, believing the

scope of its mandate was limited to questions of political

gerrymandering, again rejected appellants’ claims. Hen-

derson, 399 F. Supp. 2d, at 777-778. Judge Ward would

have granted rehef under the theory—presented to the

court for the first time on remand—that mid-decennial

redistricting violates the one-person, one-vote require-

ment, but he concluded such an argument was not within

the scope of the remand mandate. /d., at 779, 784-785

(specially concurring).

Cite as: 548 U.S. (2006) 7

Opinion of the Court

I]

A

Based on two similar theories that address the mid-

decade character of the 2008 redistricting, appellants now

argue that Plan 1374C should be invalidated as an uncon-

stitutional partisan gerrymander. In Davis v. Bandemer,

A478 U.S. 109 (1986), the Court held that an equal protection

challenge to a political gerrymander presents a justiciable

case or controversy, id., at 118-127, but there was dis-

agreement over what substantive standard to apply. Com-

pare id., at 127-187 (plurality opinion) with id., at 161-162

(Powell, J., concurring in part and dissenting in part). That

disagreement persists. A plurality of the Court in Vieth v.

Jubelirer would have held such challenges to be nonjusticia-

ble political questions, but a majority declined to do so. See

541 U.S., at 806 (KENNEDY, J., concurring in judgment); id.,

at. 317 (STEVENS, J., dissenting); id., at 343 (SOUTER, J.,

dissenting); id., at 355 (BREYER, J., dissenting). We do not

revisit. the justiciability holding but do proceed to examine

whether appellants’ claims offer the Court a manageable,

reliable measure of fairness for determining whether a

partisan gerrymander violates the Constitution.

B

Before addressing appellants’ arguments on mid-decade

redistricting, it is appropriate to note some basic princi-

ples on the roles the States, Congress, and the courts play

in determining how congressional districts are to be

drawn. Article | of the Constitution provides: ,

“Section 2. The House of Representatives shall be

composed of Members chosen every second Year by

the People of the several States... .

“Section 4. The Times, Places and Manner of hold-

ing Elections for . . . Representatives, shall be pre-

scribed in each State by the Legislature thereof; but

8 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

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Opinion of KENNEDY, J.

the Congress may at any time by Law make or alter

such Regulations ... .”

This text, we have explained, “leaves with the States

primary responsibility for apportionment of their federal

congressional . . . (listricts.”. Growe v. Emison, 507 U.S. 25,

34 (1993); see also Chapman v. Meier, 420 U.S. 1, 27 (1975)

(“[Rjeapportionment is primarily the duty and responsibility

of the State through its legislature or other body”); Smiley v.

Holm, 285 U.S. 355, 366-367 (1932) (reapportionment

implicated State’s powers under Art. I, §4). Congress, as

the text of the Constitution also provides, may set further

requirements, and with respect to districting it has gener-

ally required single-member districts. See U.S. Const.,

Art. |, §4; 81 Stat. 581, 2 U.S. C. §2c; Branch v. Smith, 538

U.S. 254, 266-267 (2003). But see id., at 275 (plurality

opinion) (multimember districts permitted by 55 Stat. 762, 2

U.S. C. §2a(c) in limited circumstances). With respect to a

mid-decade redistricting to change districts drawn earlier

in conformance with a decennial census, the Constitution

and Congress state no explicit prohibition.

Although the legislative branch plays the primary role

in congressional redistricting, our precedents recognize an

important role for the courts when a districting plan vio-

lates the Constitution. See, e.g., Wesberry v. Sanders, 376

U.S. 1 (1964). This litigation is an example, as we have

discussed. When Texas did not enact a plan to comply with

the one-person, one-vote requirement under the 2000 cen-

sus, the District Court found it necessary to draw a redis-

tricting map on its own. That the federal courts sometimes

are required to order legislative redistricting, however, does

not shift the primary locus of responsibility.

“Legislative bodies should not leave their reappor-

tionment tasks to the federal courts; but. when those

with legislative responsibilities do not respond, or the

imminence of a state election makes it impractical for

Cite as: 548 U.S. (2006) 9

Opinion of KENNEDY, J.

them to do so, it becomes the ‘unwelcome obligation’ of

the federal court to devise and impose a reapportion-

ment plan pending later legislative action.” Wise v.

Lipscomb, 437 U.S. 535, 540 (1978) (principal opinion)

(quoting Connor v. Finch, 431 U.S. 407, 415 (1977)).

Quite apart from the risk of acting without a legislature’s

expertise, and quite apart from the difficulties a court

faces in drawing a map that is fair and rational, see id., at

414-415, the obligation placed upon the Federal Judiciary

is unwelcome because drawing lines for congressional

districts is one of the most significant acts a State can

perform to ensure citizen participation in republican self-

governance. That Congress is the federal body explicitly

given constitutional power over elections is also a notewor-

thy statement of preference for the democratic process. As

the Constitution vests redistricting responsibilities fore-

most in the legislatures of the States and in Congress, a

lawful, legislatively enacted plan should be preferable to

one drawn by the courts.

It should follow, too, that if a legislature acts to replace

a court-drawn plan with one of its own design, no pre-

sumption of impropriety should attach to the legislative

decision to act. As the District Court noted here, Session,

298 F.Supp. 2d, at 460-461, our decisions have assumed

that state legislatures are free to replace court-mandated

remedial plans by enacting redistricting plans of their

own. See, e.g., Upham v. Seamon, 456 U.S. 37, 44 (1982)

(per curiam); Wise, supra, at 540 (principal opinion) (quot-

ing Connor, supra, at 415); Burns v. Richardson, 384 U.S.

73, 85 (1966); Reynolds v. Sims, 377 U.S. 533, 587 (1964).

Underlying this principle is the assumption that to prefer

a court-drawn plan to a legislature’s replacement would be

contrary to the ordinary and proper operation of the politi-

cal process. Judicial respect for legislative plans, however,

cannot justify legislative reliance on improper criteria for

10 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

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Opinion of KENNEDY, J.

districting determinations. With these considerations in

mind, we next turn to consider appellants’ challenges to

the new redistricting plan. \

C

Appellants claim that Plan 1374C, enacted by the Texas

Legislature in 2003, is an unconstitutional political ger-

rymander. A decision, they claim, to effect mid-decennial

redistricting, when solely motivated by partisan objec-

tives, violates equal protection and the First Amendment

because it serves no legitimate public purpose and bur-

dens one group because of its political opinions and affilia-

tion. The mid-decennial nature of the redistricting, appel-

lants say, reveals the legislature’s sole motivation. Unlike

Vieth, where the legislature acted in the context of a re-

quired decennial redistricting, the Texas Legislature

voluntarily replaced a plan that itself was designed to

comply with new census data. Because ‘Texas had “no

constitutional obligation to act at all’ in 2008, Brief for

Appellant Jackson et al. in No. 05-276, p. 26, it is hardly

surprising, according to appellants, that the District Court

found “|t|here is little question but that the single-minded

purpose of the Texas Legislature in enacting Plan 1374C

was to gain partisan advantage” for the Republican major-

ity over the Democratic minority, Session, supra, at 470.

A rule, or perhaps a presumption, of invalidity when a

mid-decade redistricting plan is adopted solely for parti-

san motivations is a salutary one, in appellants’ view, for

then courts need not inquire about, nor parties prove, the

discriminatory effects of partisan gerrymandering—a

matter that has proved elusive since Bandemer. See

Vieth, 541 U.S., at 281 (plurality opinion); Bandemer, 478

U.S., at 127. Adding to the test’s simplicity is that it does

not quibble with the drawing of individual district. lines

but challenges the decision to redistrict at all.

lor a number of reasons, appellants’ case for adopting

Cite as: 548 U.S. (2006) ll

Opinion of KENNEDY, J.

their test is not convincing. To begin with, the state ap-

pellees dispute the assertion that partisan gain was the

“sole” motivation for the decision to replace Plan 1L151C.

There is some merit to that criticism, for the pejorative

label overlooks indications that partisan motives did not

dictate the plan in its entirety. The legislature does seem

to have decided to redistrict with the sole purpose of

achieving a Republican congressional majority, but parti-

san aims did not guide every line it drew. As the District

Court found, the contours of some contested district lines

were drawn. based on more mundane and local interests.

Session, supra, at 472-473. The state appellees also con-

tend, and appellants do not contest, that a number of line-

drawing requests by Democratic state legislators were

honored. Brief for State Appellees 34.

Evaluating the legality of acts arising out of mixed

motives can be complex, and affixing a single label to

those acts can be hazardous, even when the actor is an

individual performing a discrete act. See, e.g., Hlariman v.

Moore, 547 U.S. ___, _ _. (2006) (slip op., at 9-10). When

the actor is a legislature and the act is a composite of

manifold choices, the task can be even more daunting.

Appellants’ attempt to separate- the legislature's sole

motive for discarding Plan 1151C from the complex of

choices it made while drawing the lines of Plan 1374C

seeks to avoid that difficulty. We are skeptical, however,

of a claim that seeks to invalidate a statute based on a

legislature’s unlawful motive but does’ so without refer-

ence to the content of the legislation enacted.

Even setting this skepticism aside, a successful claim

attempting to identify unconstitutional acts of partisan

gerrymandering must do what appellants’ sole-motivation

theory explicitly disavows: show a burden, as measured by

a reliable standard,-on the complainants’ representational

rights. For this reason, a majority of the Court rejected a

test proposed in Vieth that is markedly similar to the one

12 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v,

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Opinion of KENNEDY, J.

-

appellants present today. Compare 541 U.S., at 336

(STEVENS, J., dissenting) (“Just as race can be a factor in,

but cannot dictate the outcome of, the districting process,

so too can partisanship be a permissible consideration in

drawing district lines, so long as it does not predominate’),

and id., at 338 ([A]n acceptable rational basis can be

neither purely personal nor purely partisan”), with id., at

292-295 (plurality opinion), and id., at 3807-308

(KENNEDY, J., concurring in judgment).

The sole-intent standard offered here is no more compel-

ling when it is linked to the circumstance that Plan 1374C

is mid-decennial legislation. The text and structure of the

Constitution and our case law indicate there is nothing

inherently suspect about a legislature’s decision to replace

mid-decade a court-ordered plan with one of its own. And

even if there were, the fact of mid-decade redistricting

alone is no sure indication of unlawful political gerryman-

ders. Under appellants’ theory, a highly effective partisan

gerrymander that coincided with decennial redistricting

would receive less scrutiny than a bumbling, yet solely

partisan, mid-decade redistricting. More concretely, the

test would leave untouched the 1991 Texas redistricting,

which entrenched a party on the verge of minority status,

while striking down the 2008 redistricting plan, which

resulted in the majority Republican Party capturing a

larger share of the seats. A test that treats these two

similarly effective power plays in such different ways does

not have the reliability appellants ascribe to it.

Furthermore, compared to the map challenged in Vieth,

which led to a Republican majority in the congressional

delegation despite a Democratic majority in the statewide

vote, Plan 1374C can be seen as making the party balance

more congruent to statewide party power. To be sure,

there is no constitutional requirement of proportional

representation, and equating a party’s statewide share of

the vote with its portion of the congressional delegation is

Cite as: 548 U.S. (2006) 13

Opinion of KENNEDY, J.

a rough measure at best. Nevertheless, a congressional

plan that more closely reflects the distribution of state

party power seems a less likely vehicle for partisan dis-

crimination than one that entrenches an electoral minor-

ity. See Gaffney v. Cummings, 412 U.S. 735, 754 (1973).

By this measure, Plan 1374C can be seen as fairer than

the plan that survived in Vieth and the two previous Texas

plans—all three of which would pass the modified sole-

intent test that Plan 1374C would fail.

A brief for one of the amici proposes a symmetry stan-

dard that would measure partisan bias by “comparfing]

how both parties would fare hypothetically if they each (in

turn) had received a given percentage of the vote.” Brief

for Gary King et al. 5. Under that standard the measure

of a map’s bias is the extent to which a majority party

would fare better than the minority party should their

respective shares of the vote reverse. In our view amici’s

proposed standard does not compensate for appellants’

failure to provide a reliable measure of fairness. The

existence or degree of asymmetry may in large part de-

pend on conjecture about where possible vote-switchers

will reside. Even assuming a court could choose reliably

among different models of shifting voter preferences, we

are wary of adopting a constitutional standard that invali-

dates a map based on unfair results that would occur in a

hypothetical state of affairs. Presumably such a challenge

could be litigated if and when the feared inequity arose.

Cf. Abbott Laboratories vy. Gardner, 387 U.S. 136, 148

(1967). More fundamentally, the counterfactual plaintiff

would face the same problem as the present, actual appel-

lants: providing a standard for deciding how much partisan

dominance is too much. Without altogether discounting its

utility in redistricting planning and litigation, we conclude

asymmetry alone is not a reliable measure of unconstitu-

tional partisanship.

In the absence of any other workable test for judging

14 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v,

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Opinion of KENNEDY, J.

partisan gerrymanders, one effect of appellants’ focus on

mid-decade redistricting could be to encourage partisan

excess at the outset of the decade, when a legislature

redistricts pursuant to its decennial constitutional duty

and is then immune from the charge of sole-motivation. If

mid-decade redistricting were barred or at least subject to

close judicial oversight, opposition legislators would also

have every incentive to prevent passage of a legislative

plan and try their luck with a court that might give them

a better deal than negotiation with their political rivals.

See Henderson, 399 F. Supp. 2d, at. 776-777.

D

Appellants’ second political gerrymandering theory is

that. mid-decade redistricting for exclusively partisan

purposes violates the one-person, one-vote requirement.

They observe that population variances in legislative -

districts are tolerated only if they “are unavoidable despite

a good-faith effort to achieve absolute equality, or for

which justification is shown.”. Aarcher v. Daggett, 462

U.S. 725, 730 (1983) (quoting Airkpatrick v. Preisler, 394

U.S. 526, 531 (1969); internal quotation marks omitted),

Working from this unchallenged premise, appellants

contend that, because the population of Texas has shifted —

since the 2000 census, the 2008 redistricting, which relied

on that census, created unlawful interdistrict: population

variances.

To distinguish the variances in Plan 1374C from those

of ordinary, 3-year-old districting plans or belatedly drawn

court-ordered plans, appellants again rely on the volun-

tary, mid-decade nature of the redistricting and its parti-

san motivation. Appellants do not contend that a decen-

nial redistricting plan would violate equal representation

three or five years into the decade if the State’s population

had shifted substantially. As they must, they concede that

States operate under the legal fiction that their plans are

Cite as: 5487S (2006) 15

(pinion of KENNEDY, J

constitutionally apportioned throughout the decade, a

presumption that is necessary to avoid constant redistrict-

ing, with accompanying costs and instability. See Georgia

v. Ashcroft, 539 U.S. 461, 488, n. 2 (2003); Reynolds, 377

U.S., at 583. Appellants agree that a plan implemented

by a court in 2001 using 2000 population data also enjoys

the benefit. of the so-called legal fiction, presumably be-

cause belated court-drawn plans promote other important

interests, such as ensuring a plan complies with the Con-

stitution and voting rights legislation.

In appellants’ view, however, this fiction should not

provide a safe harbor for a legislature that enacts a volun-

tary, mid-decade plan overriding a legal court-drawn plan,

thus “‘unnecessarily’” creating population variance “when

there was no legal compulsion” to do so. Brief for Appel-

lant Travis County et al. in No. 05-254, p. 18. This is

particularly so, appellants say, when a legislature acts

because of an exclusively partisan motivation. Under

appellants’ theory this improper motive at the outset

seems enough to condemn the map for violating the equal-

population principle. For this reason, appellants believe

that the State cannot justify under Aarcher v. Daggett the

population variances in Plan 1374C because they are the

product of partisan bias and the desire to eliminate all

competitive districts.

As the District Court noted, this is a test that turns not

on whether a_ redistricting furthers equal-population

principles but rather on the justification for redrawing a

plan in the first place. Henderson, supra, at 776. In that

respect appellants’ approach merely restates the question

whether it was permissible for the Texas Legislature to

redraw the districting map. Appellants’ answer, which

mirrors their attack on mid-decennial redistricting solely

motivated by partisan considerations, is unsatisfactory for

reasons we have already discussed.

Appellants also contend that the legislature intention-

16 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

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Opinion of KENNEDY, J.

ally sought to manipulate population variances when it

enacted Plan 1374C. There is, however, no District Court

finding to that effect, and appellants present no specific

eVidence to support this serious allegation of bad faith.

Because appellants have not demonstrated that the legis-

lature’s decision to enact Plan 1374C constitutes a viola-

tion of the equal-population requirement, we find unavail-

ing their subsidiary reliance on Larios v. Cox, 300 F. Supp.

2d 1320 (ND Ga. 2004) (per cu. iam), summarily aff'd, 542

U.S. 947 (2004). In Larios, the District Court reviewed

the Georgia Legislature's decennial redistricting of its

State Senate and House of Representatives districts and

found deviations from the equal-population requirement.

The District Court then held the objectives of the drafters,

which included partisan interests along with regionalist

bias and inconsistent incumbent protection, did not justify

those deviations. 300 F.Supp. 2d, at 1351-1352. The

Larios holding and its examination of the legislature's

motivations were relevant only in response to an equal-

population violation, something appellants have not estab-

lished here. Even in addressing political motivation as a

justification for an equal-population violation, moreover,

Larios does not give clear guidance. The panel explained

it “need not resolve the issue of whether or when partisan

advantage alone may justify deviations in population”

because the plans were “plainly unlawful” and any parti-

san motivations were “bound up inextricably” with other

clearly rejected objectives. /d., at 1352.

In sum, we disagree with appellants’ view that a legisla-

ture’s decision to override a valid, court-drawn plan mid-

decade is sufficiently suspect to give shape to a reliable

standard for identifying unconstitutional political gerry-

manders. We conclude that appellants have established

no legally impermissible use of political classifications.

lor this reason, they state no claim on which relief may be

granted for their statewide challenge.

Cite as: 548 U.S. (2006) 17

Opinion of the Court

Plan 13874C made changes to district lines in south and

west Texas that appellants challenge as violations of §2 of

the Voting Rights Act and the Equal Protection Clause of

the Fourteenth Amendment. The most significant

changes occurred to District 23, which—both before and

after the redistricting—covers a large tand area in west

Texas, and to District 25, which earlier included Houston

but now includes a different area, a north-south strip from

Austin to the Rio Grande Valley.

After the 2002 election, it became apparent that District

23 as then drawn had an increasingly powerful Latino

population that threatened to oust the incumbent Republi-

can, Henry Bonilla. Before the 2003 redistricting, the

Latino share of the citizen voting-age population was

57.5%, and Bonilla’s support among Latinos had dropped

with each successive election since 1996. Session, 298

F. Supp. 2d, at 488-489. In 2002, Bonilla captured only

8% of the Latino vote, ibid., and 51.5% of the overall vote.

Faced with this loss of voter support, the legislature acted

to protect Bonilla’s incumbency by changing the lines—

and hence the population mix—of the district. To begin

with, the new plan divided Webb County and the city of

Laredo, on the Mexican border, that formed the county’s

population base. Webb County, which is 94% Latino, had

previously rested entirely within District 23; under the

new plan, nearly 100,000 people were shifted into

neighboring District 28. Jd., at 489. The rest of the

county, approximately 93,000 people, remained in District

23. To replace the numbers District 23 lost, the State

added voters in counties comprising a largely Anglo, Re-

publican area in central Texas. /d., at 188. In the newly

drawn district, the Latino share of the citizen voting-age

population dropped to 46%, though the Latino share of the

total voting-age population remained just over 50%. /d.,

at 489.

18 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

PERRY .

Opinion of the Court

These changes required adjustments elsewhere, of

- course, so the State inserted a third district between the

two <listricts to the east of District 23, and extended all

three of them farther north. New District 25 is a long,

narrow strip that winds its way from McAllen and the

Mexican border towns in the south to Austin, in the center

of the State and 300 miles away. /d., at 502. In between

it includes seven full counties, but 77% of its population

resides in split counties at the northern and southern

ends. Of this 77%, roughly half reside in Hidalgo County,

which includes McAllen, and half are in Travis County,

which includes parts of Austin. Jbid. The Latinos in

District 25, comprising 55% of the district’s citizen voting-

age population, are also mostly divided between the two

distant areas, north and south. /d., at 499. The Latino

communities at the opposite ends of District 25 have

divergent “needs and interests,” id., at 502, owing to “dif-

ferences in socio-economic status, education, employment,

health, and other characteristics,” id., at 512.

The District Court summed up the purposes underlying

the redistricting in south and west Texas: “The change to

Congressional District 23 served the dual goal of increas-

ing Republican seats in general and protecting Bonilla’s

incumbency in particular, with the additional political

nuance that Bonilla would be reelected in a district that

had a majority of Latino voting age population—although

clearly not a majority of citizen voting age population and

certainly not an effective voting majority.” /d., at 497.

The goal in creating District 25 was just as clear: “[tlo

avoid retrogression under §5" of the Voting Rights Aet.

given the reduced Latino voting strength in District 23.

Id., at 489.

A

The question we address is whether Plan 1374C violates

§2 of the Voting Rights Act. A State violates §2

Cite as: 548 U.S. (2006) 19

Opinion of the Court

“if, based on the totality of circumstances, it is shown

that the political processes leading to nomination or

election in the State or political subdivision are not

equally open to participation by members of [a racial

group] in that its members have less opportunity than

other members of the electorate to participate in the

political process and to elect representatives of their

choice.” 42 U.S. C. §1973(b).

The Court has identified three threshold conditions for

establishing a §2 violation: (1) the racial group is “‘“suffi-

ciently large and geographically compact to constitute a

majority in a single-member district”’”; (2) the racial

group is “‘“politically cohesive”’”; and (3) the majority

“““votles| sufficiently as a bloc to enable it . . . usually to

defeat. the minority’s preferred candidate.”’” Johnson vy.

De Grandy, 512 U.S. 997, 1006-1007 (1994) (quoting

Growe, 507 U.S., at 40 (in turn quoting Thornburg v.

Gingles, 478 U.S. 30, 50-51 (1986))). These are the so-

called Gingles requirements.

If all three Gingles requirements are established, the

statutory text directs us to consider the “totality of cir-

cumstances” to determine whether members of a racial

group have less opportunity than do other members of the

electorate. De Grandy, supra, at 1011-1012; see also

Abrams v. Johnson, 521 U.S. 74, 91 (1997). The general

terms of the statutory standard “totality of circumstances”

require judicial interpretation. For this purpose, the

Court has referred to the Senate Report on the 1982

amendments to the Voting Rights Act, which identifies

factors typically relevant to a §2 claim, including:

Pe

“the history of voting-related discrimination in the

State or political subdivision; the extent to which vot-

ing in the elections of the State or political subdivision

is racially polarized; the extent to which the State or

political subdivision has used voting practices or pro-

20) LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.,

PERKY

(pinion of the Court

cedures that tend to enhance the opportunity for dis-

crimination against the minority group ...; the ex-

tent to which minority group members bear the effects

of past discrimination in areas such as education, em-

ployment, and health, which hinder their ability to

participate effectively in the political process; the use

of overt or subtle racial appeals in political cam-

paigns; and the extent to which members of the mi-

nority group have been elected to public office in the

jurisdiction. The Report notes also that evidence

demonstrating that elected officials are unresponsive

to the particularized needs of the members of the mi-

nority group and that the policy underlying the

State's or the political subdivision’s use of the con-

tested practice or structure is tenuous may have pro-

bative value.” Gingles, supra, at. 44—45 (citing S. Rep.

No. 97-417 (1982) (hereinafter Senate Report); pin-

point citations omitted).

Another relevant consideration is whether the number

of districts in which the minority group forms an effective

majority is roughly proportional to its share of the popula-

tion in the relevant area. De Grandy, supra, at 1000.

The District Court’s determination whether the §2

requirements are satisfied must be upheld unless clearly

erroneous. See Gingles, supra, at 78-79. Where “the

ultimate finding of dilution” is based on “a misreading of

the governing law,” however, there is reversible error. De

Grandy, supra, at 1022.

B

Appellants argue that the changes to District 23 diluted

the voting rights of Latinos who remain in the district.

Specifically, the redrawing of lines in District 23 caused

the Latino share of the citizen voting-age population to

drop from 57.5% to 46%. The District Court recognized

that “Latino voting strength in Congressional District 23

Cite as: 548 U.S. (2006) 21

Opinion of the Court

is, unquestionably, weakened under Plan 1374C.” Ses-

sion, 298 F. Supp. 2d, at 497. The question is whether this

weakening amounts to vote dilution.

To begin the Gingles analysis, it is evident that the

second and third Gingles preconditions—cohesion among

the minority group and bloc voting among the majority

population—are present in District 23. The District Court

found “racially polarized voting” in south and west Texas,

and indeed “throughout the State.” Session, supra, at

A92—493. The polarization in District 23 was especially

severe: 92% of Latinos voted against Bonilla in 2002, while

88% of non-Latinos voted for him. App. 134, Table 20

(expert Report of Allan J. Lichtman on Voting-Rights

Issues in Texas Congressional Redistricting (Nov. 14,

2002) (hereinafter Lichtman Report)). Furthermore, the

projected results in new District 23 show that the Anglo

citizen voting-age majority will often, if not always, pre-

vent Latinos from electing the candidate of their choice in

the district. Session, supra, at 496-497. For all these

reasons, appellants demonstrated sufficient minority

cohesion and majority bloc voting to meet the second and

third Gingles requirements.

The first Gingles factor requires that a group be “suffi-

ciently large and geographically compact to constitute a

majority in a single-member district.” 478 U.S., at 50.

Latinos in District 23 could have constituted a majority of

the citizen voting-age population in the district, and in

fact did so under Plan 1151C. Though it may be possible

for a citizen voting-age majority to lack real electoral

opportunity, the Latino majority in old District 23 did

possess electoral opportunity protected by §2.

While the District Court stated that District 23 had not

been an effective opportunity district under Plan 1151C, it

recognized the district was “moving in that direction.”

Session, 298 F.Supp. 2d, at 489. Indeed, by 2002 the

Latino candidate of choice in District 23 won the majority

bs

to

LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

PERRY

Opinion of the Court

of the district's votes in 13 out of 15 elections for statewide

officeholders. /d., at 518 (Ward, J., concurring in part and

clissenting in part). And in the congressional race, Bonilla

could not have prevailed without some Latino support,

limited though it was. State legislators changed District

23 specifically because they worried that Latinos would

vote Bonilla out of office. Id., at 488.

Furthermore, to the extent the District Court suggested

that District 23 was not a Latino opportunity district in

2002 simply because Bonilla prevailed, see id., at 488, 495,

it was incorrect. The circumstance that a group does not

win elections does not resolve the issue of vote dilution.

We have said that “the ultimate right of §2 is equality of

opportunity, not a guarantee of electoral success for mi-

nority-preferred candidates of whatever race.” De Grandy,

512 U.S., at 1014, n. 11. In old District 23 the increase in

Latino voter registration and overall population, Session,

298 F. Supp. 2d, at 523 (Ward, J., concurring in part and

dissenting in part), the concomitant rise in Latino voting

power-in each successive election, the near-victory of the

Latino candidate of choice in 2002, and the resulting

threat to the Bonilla incumbency, were the very reasons

that led the State to redraw the district lines. Since the

redistricting prevented the immediate success of the

emergent Latino majority in District 23, there was a de-

nial of opportunity in the real sense of that term.

Plan 1374C’s version of District 23, by contrast, “is

unquestionably not a Latino opportunity district.” /d., at

496. Latinos, to be sure, are a bare majority of the voting-

age population in new District 23, but only in a hollow

sense, for the parties agree that the relevant numbers

must include citizenship. This approach fits the language

of §2 because only eligible voters affect a group's opportu-

nity to elect candidates. In sum, appellants have estab-

lished that Latinos could have had an opportunity district

in District 28 had its lines not been altered and that they

Cite as: 548 U.S. (2006) 23

Opinion of the Court

do not have one now.

Considering the district in isolation, the three Gingles

requirements are satisfied. The State argues, nonetheless,

that it met its §2 obligations by creating new District 25 as

an offsetting opportunity district. It is true, of course, that

“States retain broad discretion in drawing districts to

comply with the mandate of §2.”. Shaw v. Hunt, 517 U.S.

899, 917, n. 9 (1996) (Shaw II). This principle has limits,

though. The Court has rejected the premise that a State

can always make up for the less-than-equal opportunity of

some individuals by providing greater opportunity to

others. See id., at 917 (“The vote-dilution injuries suffered

by these persons are not remedied by creating a safe ma-

jority-black district somewhere else in the State”). As set

out below, these conflicting concerns are resolved by allow-

ing the State to use one majority-minority district to com-

pensate for the absence of another only when the racial

group in each area had a §2 right and both could not be

accommodated.

As to the first Gingles requirement, it is not enough that

appellants show the possibility of creating a majority-

minority district that would include the Latinos in District

23. See Shaw II, supra, at 917, n.9 (rejecting the idea

that “a §2 plaintiff has the right to be placed in a majority-

minority district once a violation of the statute is shown’).

If the inclusion of the plaintiffs would necessitate the

exclusion of others, then the State cannot be faulted for its

choice. That is why, in the context of a challenge to the

drawing of district lines, “the first Gingles condition re-

quires the possibility of creating more than the existing

number of reasonably compact districts with a sufficiently

large minority population to elect candidates of its choice.”

De Grandy, supra, at. 1008.

The District Court found that the current plan contains

six Latino opportunity districts and that seven reasonably

compact districts could not be drawn. Appellant Gl Forum

24 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v,

PERRY

Opinion of the Court

presented a plan with seven majority-Latino districts, but

the District Court found these districts were not reasona-

bly compact, in part because they took in “disparate and

distant communities.” Session, supra, at 491-492, and n.

125. While there was some evidence to the contrary, the

court’s resolution of the conflicting evidence was not

clearly erroneous.

A problem remains, though, for the District Court failed

to perform a comparable compactness inquiry for Plan

1374C as drawn. De Grandy requires a comparison be-

tween a challenger’s proposal and the “existing number of

reasonably compact districts.”. 512 U.S., at 1008. To be

sure, §2 does not forbid the creation of a noncompact

majority-minority district. Bush v. Vera, 517 U.S., at 999

(KENNEDY, J., concurring). The noncompact district can-

not, however, remedy a violation elsewhere in the State.

See Shaw II, supra, at 916 (unless “the district contains a

‘geographically compact’ population” of the racial group,

“where that district sits, ‘there neither has been a wrong

nor can be a remedy’” (quoting Growe, 507 U.S., at 41)).

Simply put, the State’s creation of an opportunity district

for those without a §2 right offers no excuse for its failure

to provide an opportunity district for those with a §2 right.

And since there is no §2 right to a district that is not

reasonably compact, see Abrams, 521 U.S., at 91-92, the

creation of a noncompact district does not compensate for

the dismantling of a compact opportunity district.

THE CHIEF JUSTICE claims compactness should be only

a factor in the analysis, see post, at. 16 (opinion concurring

in part, concurring in judgment in part, and dissenting in

part), but his approach comports neither with our prece-

dents nor with the nature of the right established by §2.

De Grandy expressly stated that the first Gingles prong

looks only to the number of “reasonably compact districts.”

512 U.S., at 1008. Shaw II, moreover, refused to consider

a noncompact district as a possible remedy for a §2 viola-

Cite as: 548 U.S. (2006) 25

Opinion of the Court

tion. 517 U.S., at 916. It is true Shaw IT applied this

analysis in the context of a State’s using compliance with

§2 as a defense to an equal protection challenge, but the

holding was clear: A State cannot remedy a §2 violation

through the creation of a noncompact district. Ibid. Shaw

I] also cannot be distinguished based on the relative loca-

tion of the remedial district as compared to the district of

the alleged violation. The remedial district in Shaw I/ had

a 20% overlap with the district the plaintiffs sought, but

the Court stated “[wle do not think this degree of incorpo-

ration could mean [the remedial district] substantially

addresses the §2 violation.” Jd., at 918; see also De

Grandy, supra, at 1019 (expressing doubt about the idea

that even within the same county, vote dilution in half the

county could be compensated for in the other half). The

overlap here is not substantially different, as the majority

of Latinos who were in the old District 23 are still in the

new District 23, but no longer have the opportunity to

elect their candidate of choice.

Apart from its conflict with De Grandy and Shaw I],

THE CHIEF JUSTICE’s approach has the deficiency of creat-

ing a one-way rule whereby plaintiffs must show compact-

ness but States need not (except, it seems, when using §2

as a defense to an equal protection challenge). THE CHIEF

JUSTICE appears to accept that a plaintiff, to make out a

§2 violation, must show he or she is part of a racial group

the, could form a majority in a reasonably compact (lis-

trict. Post, at 15. If, however, a noncompact district can-

not make up for the lack of a compact district, then this is

equally true whether the plaintiff or the State proposes

the noncompact clistrict.

The District Court stated that Plan 1374C created “six

Gingles Latino” districts, Session, 298 F. Supp. 2d, at 498,

but. it failed to decide whether District 25 was reasonably

compact for §2 purposes. It recognized there was a 300-

mile gap between the Latino communities in District 25,

26 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

PERRY

Opinion of the Court

and a similarly large gap between the needs and interests

of the two groups. /d., at 502. After making these obser-

vations, however, it did not make any finding about com-

pactness. /d., at 502-504. It ruled instead that, despite

these concerns, District 25 would be an effective Latino

opportunity district because the combined voting rc ngth

of both Latino groups would allow a Latino-p,eferred

candidate to prevail in elections. IJbid. The District

Court's general finding of effectiveness cannot substitute

for the lack of a finding on compactness, particularly

because the District Court measured effectiveness simply

by aggregating the voting strength of the two groups of

Latinos. /d., at 503-504. Under the District Court's

approach, a district would satisfy §2 no matter how non-

compact it was, so long as all the members of a racial

group, added together, could control election outcomes. =~

The District Court did evaluate compactness for the

purpose of deciding whether race predominated in the

drawing of district lines. The Latinos in the Rio Grande

Valley and those in Central Texas, it found, are “disparate

communities of interest,” with “differences in socio-

economic status, education, employment, health, and other

characteristics.” /d., at 512. The court's conclusion that

the relative smoothness of the district lines made the

(istrict compact, despite this combining of discrete com-

munities of interest, is inapposite because the court ana-

lyzed the issue only for equal protection purposes. In the

equal protection context, compactness focuses on the

contours of district lines to determine whether race was

the predominant factor in drawing those lines. See Miller

v. Johnson, 515 U.S. 900, 916-917 (1995). Under §2, by

contrast, the injury is vote dilution, so the compactness

inquiry embraces different considerations. “The first

Gingles condition refers to the compactness of the minority

population, not to the compactness of the contested dis-

trict.” Vera, supra, at 997 (KENNEDY, J., concurring); see

Cite as: 548 U.S. (2006) 27

Opinion of the Court

also Abrams, supra, at 111 (BREYER, J., dissenting) (com-

pactness to show a violation of equal protection, “which

concerns the shape or boundaries of a district, differs from

§2 compactness, which concerns a minority group's com-

pactness”); Shaw IT, supra, at 916 (the inquiry under §2 is

whether “the minority group is geographically compact”

(internal quotation marks omitted)).

While no precise rule has emerged governing §2 com.

pactness, the “inquiry should take into account ‘traditional

districting principles such as maintaining communities of

interest and traditional boundaries.” Abrams, supra, at

92 (quoting Vera, 517 U.S., at 977 (plurality opinion)); see

also id., at 979 (A district that “reaches out to grab small

and apparently isolated minority communities” is not

reasonably compact). The recognition of nonracial com-

munities of interest reflects the principle that a State may

not “assumf[e] from a group of voters’ race that they ‘think

alike, share the same political interests, and will prefer

the same candidates at the polls.” Miller, supra, at. 920

(quoting Shaw v. Reno, 509 U.S. 630, 647 (1993)). In the

absence of this prohibited assumption, there is no basis to

believe a district that combines two far-flung segments of

a racial group with disparate interests provides the oppor-

tunity that §2 requires or that the first Gingles condition

contemplates. “The purpose of the Voting Rights Act is to

prevent discrimination in the exercise of the electoral

franchise and to foster our transformation to a society that

is no longer fixated on race.” Georgia v. Ashcroft, 539 U.S.

461, 490 (2003); cf. post, at 20 (opinion of ROBERTS, C. 4J.).

We do a disservice to these important goals by failing to

account for the differences between people of the same

race.

While the District Court recognized the relevant differ-

ences, by not performing the compactness inquiry it failed

to account for the significance of these differences under

§2. In these cases the District Court's findings regarding

28 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v,

PERRY

Opinion of the Court

the different characteristics, needs, and interests of the

Latino community near the Mexican border and the one in

and around Austin are well supported and uncontested.

Legitimate yet differing communities of interest should

not be disregarded in the interest of race. The practical

consequence of drawing a district to cover two distant,

disparate communities is that one or both groups will be

unable to achieve their political goals. Compactness is,

therefore, about more than “style points,” post, at 3 (opin-

ion of ROBERTS, C. J.); it is critical to advancing the ulti-

mate purposes of §2, ensuring minority groups equal

“opportunity ... to participate in the political process and

to elect representatives of their choice.” 42 U.S.C.

$1973). (And if it were just about style points, it is

difficult. to understand why a plaintiff would have to pro-

pose a compact district to make out a §2 claim.) As wit-

nesses who know the south and west Texas culture and

politics testified, the districting in Plan 1374C “could

make it more difficult for thinly financed Latino-preferred

candidates to achieve electoral success and to provide

adequate and responsive representation once elected.”

Session, 298 F.Supp. 2d, at 502: see also id., at 503

(Elected officials from the region “testified that the size

and diversity of the newly-configured districts could make

it more difficult for the constituents in the Rio Grande

Valley to control election outcomes”). We do not question

the District Court's finding that the groups’ combined

voting strength would enable them to elect a candidate

each prefers to the Anglos’ candidate of choice. We also

accept that in some cases members of a racial group in

different areas—for example, rural and urban communi-

ties—could share similar interests and therefore form a

compact district if the areas are in reasonably close prox-

imity. See Abrams, supra, at 111-112 (BREYER, J., dis-

senting). When, however, the only common index is race

and the result will be to cause internal friction, the State

Citeas 548.8. (2006) 29

Opinion of the Court

cannot make this a remedy for a §2 violation elsewhere.

We emphasize it is the enormous geographical distance

separating the Austin and Mexican-border communities,

coupled with the disparate needs and interests of these

populations—not either factor alone—that renders District

25 noncompact for §2 purposes. The mathematical possi-

bility of a racial bloc does not make a district compact.

Since District 25 is not reasonably compact, Plan 1374C

contains only five reasonably compact Latino opportunity

districts. Plan 1151C, by contrast, created six such dis-

tricts. The District Court did not find, and the State does

not contend, that any of the Latino opportunity districts in

Plan 1151C are noncompact. Contrary to THE CHIEF

JUSTICE’s suggestion, post, at 10-11, moreover, the Latino

population in old District 23 is, for the most part, in closer

geographic proximity than is the Latino population in new

District 25. More importantly, there has been no conten-

tion that different pockets of the Latino population in old

District 23 have divergent needs and interests, and it is

clear that, as set out below, the Latino population of Dis-

trict 23 was split apart particularly because it was becom-

ing so cohesive. The Latinos in District 23 had found an

efficacious political identity, while this would be an en-

tirely new and difficult undertaking for the Latinos in

District 25, given their geographic and other differences.

Appellants have thus satisfied all three Gingles re-

quirements as to District 23, and the creation of new

District 25 does not remedy the problem.

C

We proceed now to the totality of the circumstances, and

first to the proportionality inquiry, comparing the per-

centage of total districts that are Latino opportunity dis-

tricts with the Latino share of the citizen voting-age popu-

lation. As explained in De Grandy, proportionality is “a

relevant fact in the totality of circumstances.” 512 U.S.,

30 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

PERRY-

Opinion of the Court

at. 1000. It does not, however, act as a “safe harbor” for

States in complying with §2. /d., at 1017-1018; see also

id., at 1025 (O'Connor, J., concurring) (proportionality “is

always relevant evidence in determining vote dilution, but

is never itself dispositive”); id., at 1027-1028 (KENNEDY,

J., concurring in part and concurring in judgment) (pro-

portionality has “some relevance,” though “placing undue

emphasis upon proportionality risks defeating the goals

underlying the Voting Rights Act”). If proportionality

could act as a safe harbor, it would ratify “an unexplored

premise of highly suspect validity: that in any given voting

jurisdiction ... , the rights of some minority voters under -

§2 may be traded off against the rights of other members

of the same minority class.” I[d., at 1019; see also Shaw IT,

517 U.S., at 916-918.

The State contends that proportionality should be de-

cided on a regional basis, while appellants say their claim

requires the Court to conduct a statewide analysis. In De

Grandy, the plaintiffs “passed up the opportunity to frame

their dilution claim in statewide terms.” 512 U.S., at

1022. Based on the parties’ apparent agreement that the

proper frame of reference was the Dade County area, the

Court used that area to decide proportionality.td,,—at

1022-1023. In these cases, on the other hand, appellants

allege an “injury to African American and Hispanic voters

throughout the State.” Complaint in Civ. Action No. 03C-

356 (ED Tex.), pp. 1-2; see also First Amended Complaint

in Civ. Action No. 2:03-354 (ED Tex.), pp. 1, 5, 7; Plain-

tiffs First Amended Complaint in Civ. Action No.

2:03ev354 ete. (ED Tex.), pp. 4-5. The District Court,

moreover, expressly considered the statewide proportion-

ality argument. As a result, the question of the proper

geographic scope for assessing proportionality now pre-

sents itself,

We conclude the answer in these cases is to look at

proportionality statewide. The State contends that the

Cite as: 548 U.S. (2006) 31

Opinion of the Court

seven districts in south and west Texas correctly delimit

the boundaries for proportionality because that is the only

area of the State where reasonably compact Latino oppor-

tunity districts can be drawn. This argument, however,

misunderstands the role of proportionality. We have

already determined, under the first Gingles factor, that

another reasonably compact Latino district can be drawn.

The question now is whether the absence of that addi-

tional district constitutes impermissible vote dilution.

This inquiry requires an “‘intensely local appraisal’” of the

challenged district. Gingles, 478 U.S., at 79 (quoting

Rogers v. Lodge, 158 U.S. 613, 622 (1982)); see also

Gingles, supra, at 101 (O’Connor, J., concurring in judg-

ment). A local appraisal is necessary because the right to

an undiluted vote does not belong to the “minority as a

group,” but rather to “its individual members.” Shaw I],

supra, at 917. And a State may not trade off the rights of

some members of a racial group against the rights of other

members of that group. See De Grandy, supra, at 1019;

Shaw II, supra, at 916-918. The question is therefore not

’ “whether line-drawing in the challenged area as a whole

dilutes minority voting strength,” post, at 13 (opinion of

ROBERTS, C.J.), but whether line-drawing dilutes the

voting strength of the Latinos in District 23. :

The role of proportionality is not to displace this local

appraisal or to allow the State to trade off the rights of

some against the rights of others. Instead, it provides

some evidence of whether “the political processes leading

to nomination or election in the State or political subdivi-

sion are not equally open to participation.” 42 U.S.C.

$1973). For this purpose, the State’s seven-district area

is arbitrary. It just as easily could have included six or

eight districts. Appellants have alleged statewide vote

dilution based on a statewide plan, so the electoral oppor-

tunities of Latinos across the State can bear on whether

the lack of electoral opportunity for Latinos in District 23

32 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v,

PERRY

Opinion of the Court

is a consequence of Plan 1374C’s redrawing of lines or

simply a consequence of the inevitable ‘win some, lose

some’ in a State with racial bloc voting. Indeed, several of

the other factors in the totality of circumstances have been

characterized with reference to the State as a whole.

Gingles, supra, at 44—45 (listing Senate Report factors).

Particularly given the presence of racially polarized vot-

ing—and the possible submergence of minority votes—

throughout Texas, it makes sense to use the entire State

in assessing proportionality.

Looking statewide, there are 32 congressional districts.

The five reasonably compact Latino opportunity districts

amount to roughly 16% of the total, while Latinos make up

22% of Texas’ citizen voting-age population. (Appellant GI

Forum claims, based on data from the 2004 American

Community Survey of the U.S. Census Bureau, that

Latinos constitute 24.5% of the statewide citizen voting-

age population, but as this figure was neither available at

the time of the redistricting, nor presented to the District.

Yourt, we accept the District Court’s finding of 22%.)

Latinos are, therefore, two districts shy of proportional

representation. There is, of course, no “magic parameter,”

De Grandy, 512 U.S., at 1017, n. 14, and “rough propor-

tionality,” id., at 1023, must allow for some deviations.

We need not decide whether the two-district deficit: in

these cases weighs in favor of a §2 violation. [Even if Plan

1374C’s disproportionality were deemed insubstantial,

that consideration would not overcome the other evidence

of vote dilution for Latinos in District 28. “|T]he degree of

probative value assigned to proportionality may vary with

other facts,” id., at 1020, and the other facts in these cases

convince us that there is a §2 violation.

District 28's Latino voters were poised to elect. their

candidate of choice. They were becoming more politically

active, with a marked and continuous rise in Spanish-

surnamed voter registration. See Lichtman Report, App.

Cite as: 548 U.S. (2006) 33

Opinion of the Court

142-148. In successive elections Latinos were voting

against Bonilla in greater numbers, and in 2002 they

almost ousted him. Webb County in particular, with a

94% Latino population, spurred the incumbent's near

defeat. with dramatically increased turnout in 2002. See

2004 Almanac 1579. In response to the growing participa-

tion that threatened Bonilla’s incumbency, the State

(livided the cohesive Latino community in Webb County,

moving about 100,000 Latinos to District 28, which was

already a Latino opportunity district, and leaving the rest.

in a district where they now have little hope of electing

their candidate of choice.

The changes to District 23 undermined the progress of a

racial group that has been subject to significant voting-

related discrimination and that was becoming increasingly

politically active and cohesive. Cf. De Grandy, supra, at

1014 (finding no §2 violation where “the State’s scheme

would thwart the historical tendency to exclude Hispanics,

not encourage or perpetuate it”); White v. Regester, 412

U.S. 755, 769 (1973) (looking in the totality of the cireum-

stances to whether the proposed districting would “remedy

the effects of past and present discrimination against

Mexican-Americans, and to bring the community into the

full stream of political life of the county and State by

encouraging their further registration, voting, and other

political activities” (citation and internal quotation marks

omitted)). The District Court recognized “the long history

of discrimination against Latinos and Blacks in Texas,”

Session, 298 F.Supp. 2d, at. 473, and other courts have

elaborated on this history with respect to electoral proc-

esses:

or

lexas has a long, well-documented history of dis-

crimination that has touched upon the rights of Afri-

can-Americans and | lispanics to register, to vote, or to

participate otherwise in the electoral process. Devices

-

a LEAGUE OF UNITED LATIN AMERICAN CITIZENS v,

PERRY

pinion of the Court

such as the poll tax, an all-white primary system, and

restrictive voter registration time periods are an un-

fortunate part of this State’s minority voting rights

history. The history of official discrimination in the

Texas election process—stretching back to Recon-

struction—led to the inclusion of the State as a cov-

ered jurisdiction under Section 5 in the 1975 amend-

ments to the Voting Rights Act. Since Texas became a

covered jurisdiction, the Department of Justice has

frequently interposed objections against the State and

its subdivisions.” Vera v. Richards, 861 F.Supp. 1304,

1317 (SD Tex. 1994 citations omitted).

See also Vera, 517 U.S., at 981-982; Regester, supra, at

767-769. In addition, the “political, social, and economic

legacy of past discrimination” for Latinos in Texas, Ses-

sion, supra, at 492, may well “hinder their ability to par-

ticipate effectively in the political process,” Gingles, 478

U.S., at 45 (citing Senate Report factors).

Against this background, the Latinos’ diminishing

electoral support for Bonilla indicates their belief he was

“unresponsive to the particularized needs of the members

of the minority group.” Jbid. (same). In essence the State

took away the Latinos’ opportunity because Latinos were

about to exercise it. This bears the mark of intentional

discrimination that could give rise to an equal protection

violation. Even if we accept the District Court's finding

that the State’s action was taken primarily for political,

not racial, reasons, Session, supra, at 508, the redrawing

of the district lines was damaging to the Latinos in Dis-

trict 28. The State not anly made fruitless the Latinos’

mobilization efforts but also acted against those Latinos

who were becoming most politically active, dividing them

with a district line through the middle of Laredo.

furthermore, the reason for taking Latinos out of Dis-

trict 238, according to the District Court, was to protect.

Cite as: 548 U.S. (2006) 35

Opinion of the Court

Congressman Bonilla from a constituency that was in-

creasingly voting against him. The Court has noted that

incumbency protection can be a legitimate factor in dis-

tricting, see Aarcher v. Daggett, 462 U. S., at 740, but

experience teaches that incumbency protection can take

various forms, not all of them in the interests of the con-

stituents. If the justification for incumbency protection is

to keep the constituency intact so the officeholder is ac-

countable for promises made or broken, then the protec-

. tion seems to accord with concern for the voters. If, on the

other hand, incumbency protection means excluding some

voters from the district simply because they are likely to

vote against the officeholder, the change is to benefit the

officeholder, not the voters. By purposely redrawing lines

around those who opposed Bonilla, the state legislature

took the latter course. This policy, whatever its validity in

the realm of politics, cannot justify the effect on Latino

voters. See Gingles, supra, at 45 (citing Senate Report

factor of whether “the policy underlying” the State’s action

“is tenuous’). The policy becomes even more suspect when

considered in light of evidence suggesting that the State

intentionally drew District 23 to have a nominal Latino

voting-age majority (without a citizen voting-age majority)

for political reasons. Session, supra, at 497. This use of

race to create the facade of a Latino district also weighs in

favor of appellants’ claim.

Contrary to THE CHIEF JUSTICE’s suggestion that we are

reducing the State’s needed flexibility in complying with

§2, see post, at. 15-16, the problem here is entirely of the

State’s own making. The State chose to break apart a

Latino opportunity district to protect the incumbent con-

gressman from the growing dissatisfaction of the cohesive

and politically active Latino community in the district.

The State then purported to compensate for this harm by

creating an entirely new district that combined two groups

of Latinos, hundreds of miles apart, that represent difler-

36 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

PERRY

Opinion of the Court

ent communities of interest. Under §2, the State must be

held accountable for the effect of these choices in denying

equal opportunity to Latino voters. Notwithstanding

these facts, THE CHIEF JUSTICE places great emphasis on

the District Court's statement that “new District 25 is ‘a

more effective Latino opportunity district than Congres-

sional District 23 had been.” Post, at 2-3 (quoting Ses-

sion, 298 IF. Supp. 2d, at 503). Even assuming this state-

ment, expressed in the context of summarizing witnesses’

testimony, qualifies as a finding of the District Court, two

points make it of minimal relevance. First, as previously

noted, the District Court measured the effectiveness of

District 25 without accounting for the detrimental conse-

quences of its compactness problems. Second, the District

Court referred only to how effective District 23 “had been,”

not to how it would operate today, a significant distinction

given the growing Latino political power in the district.

Based on the foregoing, the totality of the circumstances

demonstrates a §2 violation. Even assuming Plan 1374C

provides something close to proportional representation

for Latinos, its troubling blend of politics and race—and

the resulting vote dilution of a group that was beginning

to achieve §2’s goal of overcoming prior electoral discrimi-

nation—cannot be sustained.

D

Because we hold Plan 1374C violates §2 in its redrawing

of District 23, we do not address appellants’ claims that

the use of race and politics in drawing that district vio-

lates the First Amendment and equal protection. We also

need not confront appellants’ claim of an equal protection

violation in the drawing of District 25. The districts in

south and west Texas will have to be redrawn to remedy

the violation in District 28, and we have no cause to pass

on the legitimacy of a district that must be changed. See

Session, supra, at 528 (Ward, J., concurring in part and

Cite as: 548 U.S. (2006) 37

Opinion of KENNEDY, J.

dissenting in part). District 25, in particular, was formed

to compensate for the loss of District 23 as a Latino oppor-

tunity district, and there is no reason to believe District 25

will remain in its current form once District 23 is brought

into compliance with §2. We therefore vacate the District

Court’s judgment as to these claims.

IV

Appellants also challenge the changes.to district lines in

the Dallas area, alleging they dilute African-American

voting strength in violation of §2 of the Voting Rights Act.

Specifically, appellants contend that an African-American

minority effectively controlled District 24 under Plan

1151C, and that §2 entitles them to this district.

Before Plan 1374C was enacted, District 24 had elected

Anglo Democrat. Martin Frost to Congress in every elec-

tion since 1978. Session, supra, at 481-482. Anglos were

the largest racial group in the district, with 49.8% of the

citizen voting-age population, and third largest were

Latinos, with 20.8%. State’s Exh. 57, App. 339. African-

Americans were the second-largest group, with 25.7% of

the citizen voting-age population, ibid., and they voted

consistently for Frost. The new plan broke apart this

racially diverse district, assigning its pieces into several

other districts.

Accepting that African-Americans would not be a major-

ity of the single-member district they seek, and that Afri-

can-Americans do not vote cohesively with Hispanics,

Session, supra, at 484, appellants nonetheless contend

African-Americans had effecive control of District 24. As

the Court has done several times before, we assume for

purposes of this litigation that it is possible to state a §2

claim for a racial group that makes up less than 50% of

the population. See De Grandy, 512 U.S., at 1009; Voino-

vich v. Quilter, 507 U.S. 146, 154 (1993); Gingles, 478 U. S..,

at 46-17, n. 12. Even on the assumption that the first

38 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

PERRY

Opinion of KENNEDY, J.

Gingles prong can accommodate this claim, however,

appellants must show they constitute “a sufficiently large

minority to elect their candidate of choice with the assis-

tance of cross-over votes.” Voinovich, supra, at 158 (em-

phasis omitted).

The relatively small African-American population can

meet this standard, according to appellants, because they

constituted 64% of the voters in the Democratic primary.

Since a significant number of Anglos and Latinos voted for

the Democrat in the general election, the argument. goes,

African-American control of the primary translated into

effective control of the entire election.

The District Court found, however, that African-

Americans could not elect their candidate of choice in the

primary. In support of this finding, it relied on testimony

that the district was drawn for an Anglo Democrat, the

fact that Frost had no opposition in any of his primary

elections since his incumbency began, and District 24’s

demographic similarity to another district where an Afri-

can-American candidate failed when he ran against an

Anglo. Session, 298 F.Supp. 2d, at 483-484. “In short,

that Anglo Democrats control this district is,” according to

the District Court, “the most rational conclusion.” I/d., at

484.

Appellants fail to demonstrate clear error in this find-

ing. In the absence of any contested Democratic primary

in District 24 over the last 20 years, no obvious bench-

mark exists for deciding whether African-Americans could

elect. their candidate of choice. The fact that African-

Americans voted for Frost—in the primary and general

elections—could signify he is their candidate of choice.

Without a contested primary, however, it could also be

interpreted to show (assuming racial bloc voting) that

Anglos and Latinos would vote in the Democratic primary

in greater numbers if an African-American candidate of

choice were to run, especially given Texas’ open primary

Cite as: 548 U.S. (2006) 39

Opinion of KENNEDY, J.

system. The District Court heard trial testimony that

would support both explanations, and we cannot say that

it erred in crediting the testimony that endorsed the latter

interpretation. Compare App. 242-243 (testimony of

Tarrant County Precinct Administrator that Frost is the

“favored candidate of the African-American community”

and that he has gone unopposed in primary challenges

because he “serves [the African-American community’s]

interests”), with id., at 262-264 (testimony of Congress-

woman Eddie Bernice Johnson that District 24 was drawn

for an Anglo Democrat (Martin Frost, in particular) in

1991 by splitting a minority community), and id., at 277-

280 (testimony of State Representative Ron Wilson that

African-Americans did not have the ability to elect their

preferred candidate, particularly an African-American

candidate, in District 24 and that Anglo Democrats in

such “influence |dlistricts” were not fully responsive to the

needs of the African-American community).

The analysis submitted by appellants’ own expert was

also inconsistent. Of the three elections for statewide

office he examined, in District 24 the African-American

candidate of choice would have won one, lost one, and in

the third the African-American vote was split. See Licht-

man Report, id., at 75-76, 92-96; State’s Exh. 20 in Civ.

Action No. 2:03—CV-—354 (ED Tex.), p. 138; State’s Exh. 21

in Civ. Action No. 2:03—CV-—354 (ED Tex.). The District

Court committed no clear error in rejecting this question-

able showing that African-Americans have the ability to

elect their candidate of choice in favor of other evidence

that an African-American candidate of choice would not

prevail. See Anderson v. Bessemer City, 470 U.S. 564, 574

~ (1985) (“Where there are two permissible views of the evi-

dence, the factfinder’s choice between them cannot be

clearly erroneous’). -

That African-Americans had influence in the district,

Session, supra, at 485, does not suffice to state a §2 claim

40 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

PERRY

Opinion of KENNEDY, J.

in these cases. The opportunity “to elect representatives of

their choice,” 42 U.S. C. §1973(b), requires more than the

ability to influence the outcome between some candidates,

none of whom is their candidate of choice. There is no

doubt. African-Americans preferred Martin Frost to the

Republicans who opposed him. The fact that African-

Americans preferred Frost to some others does not, how-

ever, make him their candidate of choice. Accordingly, the

ability to aid in Frost's election does not make the old

District 24 an African-American opportunity district for

purposes of §2. If §2 were interpreted to protect. this kind

of influence, it would unnecessarily infuse race into virtu-

ally every redistricting, raising serious constitutional

questions. See Georgia v. Ashcroft, 539 U.S., at 491

(KENNEDY, J., concurring).

Appellants respond by pointing to Georgia v. Ashcroft,

where the Court held that the presence of influence dis-

tricts is a relevant consideration under §5 of the Voting

Rights Act. The inquiry under §2, however, concerns the

opportunity “to elect. representatives of their choice,” 42

U.S. C. §1973(b), not whether a change has the purpose or

effect of “denying or abridging the right to vote,” §1973c.

Ashcroft recognized the differences between these tests,

539 U.S., at 478, and concluded that the ability of racial

groups to elect candidates of their choice is only one factor

under §5, id., at 480. So while the presence of districts

“where minority voters may not be able to elect a candi-

date of choice but can play a substantial, if not decisive,

role in the electoral process” is relevant to the §5 analysis,

id., at 482, the lack of such districts cannot establish a §2

violation. The failure to create an influence district in

these cases thus does not run afoul of §2 of the Voting

Rights Act.

Appellants do not raise a district-specific political ger-

rymandering claim against District 24. Even if the claim

were cognizable as part of appellants’ statewide challenge,

Cite as: 548 U.S. (2006) 41

Opinion of KENNEDY, J.

it would be unpersuasive. Just as for the statewide claim,

appellants would lack any reliable measure of partisan

fairness. JUSTICE STEVENS suggests the burden on repre-—

sentational rights can be measured by comparing the

success of Democrats in old District 24 with their success

in the new districts they now occupy. Post, at 31-82 (opin-

ion concurring in part and dissenting in part). There is no

reason, however, why the old district has any special claim

to fairness. In fact, old District 24, no less than the old

redistricting plan as a whole, was formed for partisan

reasons. See Session, 298 F.Supp. 2d, at 484; see also

Balderas v. Texas, Civ. Action No. 6:01CV158 (ED Tex.,

Nov. 14, 2001) (per curiam), summarily aff'd, 536 U.S. 919

(2002), App. E to Juris. Statement in No. 05-276, p. 208a.

Furthermore, JUSTICE STEVENS’ conclusion that the State

has not complied with §5 of the Voting Rights Act, post, at

33-37—eflectively overruling the Attorney General with-

out briefing, argument, or a lower court opinion on the

issue—does not. solve the problem of determining a reli-

able measure of impermissible partisan effect.

* * *

We reject the statewide challenge to Texas’ redistricting

as an unconstitutional political gerrymander and the

challenge to the redistricting in uhe Dallas area as a viola-

tion of §2 of the Voting Rights Act. We do hold that the

redrawing of lines in District 23 violates §2 of the Voting

Rights Act. The judgment of the District Court is affirmed

in part, reversed in part, and vacated in part, and the

cases are remanded for further proceedings.

It is so ordered.

Cite as: 548 U.S. (2006) ]

Opinion of STEVENS, 4.

SUPREME COURT OF THE UNITED STATES

Nos. 05-204, 05-254, 05-276 and 05-439

LEAGUE OF UNITED LATIN AMERICAN CITIZENS,

ET AL., APPELLANTS

05-204 v.

RICK PERRY, GOVERNOR OF TEXAS, ET AL.

TRAVIS COUNTY, TEXAS, ET AL., APPELLANTS

05-254 v.

RICK PERRY, GOVERNOR OF TEXAS, ET AL.

EDDIE JACKSON, ET AL., APPELLANTS

05-276 v.

RICK PERRY, GOVERNOR OF TEXAS, ET AL.

GI FORUM OF TEXAS, ET AL., APPELLANTS

05-439 U.

RICK PERRY, GOVERNOR OF TEXAS, ET AL.

ON APPEALS FROM THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF TEXAS

|June 28, 2006]

JUSTICE STEVENS, with whom JUSTICE BREYER joins as

to Parts | and Il, concurring in part and dissenting in

part.

This is a suit in which it is perfectly clear that judicially

manageable standards enable us to decide the merits of a

statewide challenge to a political gerrymander. Applying

such standards, | shall explain why the wholly unneces-

sary replacement of the neutral plan fashioned by the

three-judge court in Balderas v. Texas, Civ. Action No.

6:01CV158 (ED Tex., Nov. 14, 2001) (Plan 1151C or Bal-

2 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v,

PERRY

(pinion of STEVENS, J.

deras Plan) with Plan 1374C, which creates districts with

less compact shapes, violates the Voting Rights Act, and

fragments communities of interest—all for purely partisan

purposes—violated the State's constitutional duty to

govern impartially. Prior misconduct by the Texas Legis-

lature neither excuses nor justifies that violation. Accord-

ingly, while | join the Court’s decision to invalidate Dis-

trict 28, | would hold that Plan 1374C is entirely invalid

and direct the District Court to reinstate Plan 1151C.

Moreover, as | shall explain, even if the remainder of the

plan were valid, the cracking of Balderas District 24 would

still be unconstitutional.

|

The maintenance of existing district boundaries is ad-

vantageous to both voters and candidates. Changes, of

course, must be made after every census to equalize the

population of each district or to accommodate changes in

the size of a State’s congressional delegation. Similarly,

changes must be made in response to a finding that a

districting plan violates §2 or §5 of the Voting Rights Act,

A2 U.S.C. §§1973, 1973c. But the interests in orderly

campaigning and voting, as well as in maintaining com-

munication between representatives and their constitu-

ents, underscore the importance of requiring that any

decision to redraw district boundaries—like any other

state action that affects the electoral process—must, at the

very least, serve some legitimate governmental purpose.

See, e.g., Burdick v. Takushi, 504 U.S. 428, 434, 440

(1992); id., at 448-450 (KENNEDY, J., joined by Blackmun

and STEVENS, Jd., dissenting). A purely partisan desire

“to minimize or cancel out the voting strength of racial or

political elements of the voting population,” Fortson v.

Dorsey, 379 U.S. 433, 439 (1965), is not such a purpose.

Because a desire to minimize the strength of Texas De-

mocrats was the sole motivation for the adoption of Plan

Cite as: 548 U.S. (2006) 3

Opinion of STEVENS, J.

1374C, see Session v. Perry, 298 F. Supp. 2d 451, 470, 472

(ED Tex. 2004) (per curiam), the plan cannot withstand

constitutional scrutiny.

The districting map that Plan 1374C replaced, Plan

1151C, was not only manifestly fair and neutral, it may

legitimately be described as a milestone in Texas’ political

history because it put an end to a long history of Democ-

ratic misuse of power in that State. For decades after the

Civil War, the political party associated with the former

Commander in Chief of the Union Army attracted the

support of former slaves and a handful of “carpetbaggers,”

but had no significant political influence in Texas. The

Democrats maintained their political power by excluding

black voters from participating in primary elections, see,

e.g., Smith v. Allwright, 321 U.S. 649, 656-661 (1944), by

the artful management of multimember electoral schemes,

see, e.g., White v. Regester, 412 U.S. 755, 765-770 (1973),

and, most recently, by outrageously partisan gerryman-

dering, see ante, at. 3—4 (opinion of KENNEDY, J.); Bush v.

Vera, 517 U.S. 952, 987-990 (1996) (appendices in plural-

ity opinion), id., at 1005-1007, 1042-1045 (STEVENS, J..,

dissenting). Unfortunately, some of these tactics are not

unique to Texas Democrats; the apportionment scheme

they devised in the 1990's is only one example of the ex-

cessively gerrymandered districting plans that parties

with control of their States’ governing bodies have imple-

mented in recent years. See, e.g., Cox v. Larios, 542 U.S.

947, 947-950 (2004) (STEVENS, J., joined by BREYER, J.,

concurring) (Democratic gerrymander in Georgia); Vieth v.

Jubelirer, 541 U.S. 267, 272 (2004) (plurality opinion); id.,

at 342 (STEVENS, J., dissenting) (Republican gerrymander

in Pennsylvania); Aarcher v. Daggett, 462 U.S. 725, 744

(1983) (Democratic gerrymander in New Jersey); Badham

v. ku, 694 F. Supp. 664, 666 (ND Cal. 1988), summarily

affd, 488 U.S. 1024 (1989) (Democratic gerrymander in

California).

4. - LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

PERRY

Opinion of STEVENS, J.

Despite the Texas Democratic Party's sordid history of

manipulating the electoral process to perpetuate its stran-

glehold on political power, the Texas Republican Party

managed to become the State’s majority party by 2002. If,

after finally achieving political strength in Texas, the

Republicans had adopted a new plan in order to remove

the excessively partisan Democratic gerrymander of the

1990's, the decision to do so would unquestionably have

been supported by a neutral justification. But that is not

what happened. Instead, as the following discussion of the

relevant events that transpired in Texas following the

release of the 2000 census data demonstrates, Texas

Republicans abandoned a neutral apportionment map for

the sole purpose of manipulating district boundaries to

maximize their electoral advantage and thus create their

own impermissible stranglehold on political power.

By 2001, Texas Republicans had overcome many of the

aforementioned tactics designed to freeze the Democrats’

status as the State’s dominant party, and Republicans

controlled the governorship and the State Senate. Democ-

rats, however, continued to constitute a majority of the

State House of Representatives. In March of that year,

the results of the 2000 decennial census revealed that, as

a result of its population growth, Texas was entitled to two

additional seats in the United States House of Represen-

tatives, bringing the size of the Texas congressional dele-

gation to 32. Texas, therefore, was required to draw 32

equipopulous districts to account for its additional repre-

sentation and to comply with the one-person, one-vote

mandate of Article I, §2, see, e.g., Aarcher, 462 U.S. 725.

Under Texas law, the Texas Legislature was required to

draw these new districts. See Session, 298 F. Supp. 2d, at

457-458.

The Texas Legislature, divided betweeh a Republican

Senate and a Democratic louse, did not reach agreement.

on a new congressional map in the regular legislative

Cite as: 548 U.S. (2006) 5

Opinion of STEVENS, J.

session, and Governor Rick Perry declined to call a special

session. Litigation in the Texas state courts also failed to

result in a plan, as the Texas Supreme Court vacated the

map created by a state trial judge. See Perry v. Del Rio,

67 S.W. 3d 85 (2001). This left a three-judge Federal

District Court in the Eastern District of Texas with “‘the

unwelcome obligation of performing in the legislature's

stead.’” Balderas v. Texas, Civ. Action No. 6:01CV158-

(Nov. 14, 2001) (per curiam), App. E to Juris. Statement in

No. 05-276, p. 202a (hereinafter App. to Juris Statement)

(quoting Connor v. Finch, 431 U.S. 407, 415 (1977)).

After protracted proceedings which included the testi-

mony of an impartial expert as well as representatives of

interested groups supporting different plans, the court

prepared its own plan. “Conscious that the primary re-

sponsibility for drawing congressional districts is given to

political branches of government, and hesitant to ‘und[o]

the work of one political party for the benefit of another,’

the three-judge Balderas court sought to apply ‘only “neu-

tral” redistricting standards’ when drawing Plan 1151C.”

Ante, at 4 (opinion of KENNEDY, J.) (quoting Henderson v.

Perry, 399 F. Supp. 2d 756, 768 (ID Tex. 2005)). As the

court explained, it started with a blank map of Texas,

drew in the existing districts protected by the Voting

Rights Act, located the new Districts 31 and 32 where the

population growth that produced them had occurred, and

then applied the neutral criteria of “compactness, contigu-

ity, and respecting county and municipal boundaries.”

App. to Juris. Statement 205a. See id., at 206a—209a.

The District Court purposely “eschewed an effort to treat

old lines as an independent locator,” and concluded that

its plan had done much “to end most of the below-the-

surface ‘ripples’ of the 1991 plan and the myriad of sub-

missions before us. For example, the patently irrational

shapes of Districts 5 and 6 under the 1991 plan, widely-

cited as the most extreme but successful gerrymandering

6 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

PERRY

Opinion of STEVENS, J.

in the country, are no more.” /d., at 207a—208a.

At the conclusion of this process, the court believed that

it had fashioned a map that was “likely to produce a con-

gressional delegation roughly proportional to the party

voting breakdown across the state.” /d., at 209a. Indeed,

reflecting the growing strength of the Republican Party,

the District Court’s plan, Plan 1151C, offered that party

an advantage in 20 of the 32 congressional seats. See

Session, 298 I. Supp. 2d, at 471 (describing Plan 1151C).

The State’s expert in this litigation testified that the

Balderas Plan was not biased in favor of Democrats and

that it was “|mjaybe slightly” biased in favor of Republi-

cans. App. 224 (deposition of Ronald Keith Gaddie,

Ph.D.).. Although groups of Latino voters challenged Plan

1151C on appeal, neither major political party did so, and

the State of Texas filed a motion asking this Court to

affirm the District Court's judgment, which we did, see

Balderas v. Texas, 536 U.S. 919 (2002).

In the 2002 congressional elections, however, Republi-

cans were not able to capitalize on the advantage that the

Balderas plan had provided them. A number of Democ-

ratic incumbents were able to attract the votes of ticket-

splitters (individuals who voted for candidates from one

party in statewide elections and for a candidate from a

(different party in congressional elections), and thus won

elections in some districts that favored Republicans. As a

result, Republicans carried only 15 of the districts drawn

by the Balderas court.'

‘lt was apparently these electoral results that later caused the Dis-

trict Court to state that “the practical effect” of Plan 1151C “was to

leave the 1991 Democratic Party gerrymander largely in place as a

‘legal plan. //enderson v. Perry, 399 F. Supp. 2d 756, 768 (ED Tex.

2005); see id., at 768, n. 52. But the existence of ticket-splitting voters

hardly demonstrates that Plan 1151C was biased in favor of Democrats.

Instead, as noted above. even the State's expert in this litigation

concluded that Plan 11510 was, if anything, biased in favor of Republi-

Cite as: 548 U. S—20006) > ike 7

Opinion of STEVENS, J.

While the Republicans did not do as well as they had

hoped in elections for the United States House of Repre-

sentatives, they made gains in the Texas Llouse of Repre-

sentatives and won a majority of seats in that body. This

gave ‘Texas Republicans control over both bodies of the

state legislature, as well as the Governor's mansion, for

the first time since Reconstruction.

With full control of the State’s legislative and executive

branches, the Republicans “decided to redraw the state's

congressional districts solely for the purpose of seizing

between five and seven seats from Democratic incum-

bents.” Session, 298 F.Supp. 2d, at 472 (citation and

internal quotation marks omitted). According to former

Lieutenant Governor Bill Ratliff, a highly regarded Repub-

lican member of the State Senate, “political gain for the

Republicans was 110% of the motivation for the Plan, . . .

it was ‘the entire motivation.” /d., at 473 (quoting trial

transcript). Or, as the District Court stated in the first of

its two decisions in this litigation, “|t]here is little question

but. that the single-minded purpose of the Texas Legisla-

ture in enacting Plan 1374C was to gain partisan advan-

tage.” /d., at 470. See also ante, at 5 (quoting District

Court’s conclusion). Indeed, as the State itself argued

before the District Court.Fhe overwhelming evidence

demonstrated that partisan gain was the motivating force

behind the decision to redistrict in 2003.” State Defen-

dants’ Post-Trial Brief in No. 2:03—CV-354 (ID Tex.), p.

51 (hereinafter State Post-Trial Brief).

This desire for political gain led to a series of dramatic

confrontations between Republicans and Democrats, and

cans. Nor do the circumstances surrounding the replacement of Plan

1151C suggest that the legislature was motivated by a misimpression

that Plan 1151C was unfair to Republicans, and accordingly should be

replaced with a more equitable map. Rather, as discussed in detail

below, it is clear that the sole motivation for enacting a new districting

map Was to maximize Republican advantage.

8 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

PERRY

Opinion of STEVENS, J.

ultimately resulted in the adoption of a plan that violated -

the Voting Rights Act. The legislature did not pass a new

map in the regular 20038 session, in part because Democ-

ratic House members absented themselves and thus de-

nied the body a quorum. Governor Perry then called a

special session to take up congressional redistricting—the

same step he had declined to take in 2001 after the release

of the decennial census figures, when Republicans lacked

a majority in the House. During the first special session,

the House approved a new congressional map, but the

Senate’s longstanding tradition requiring two-thirds of

that body to support a measure before the full Senate will

consider it allowed Democrats to block the plan.

Lieutenant Governor Dewhurst then announced that he

would suspend operation of the two-thirds rule in any

future special session considering congressional redistrict-

ing. Nonetheless, in a second special session, Senate

Democrats again prevented the passage of a new district-

ing map by leaving the State and depriving the Senate of a

quorum. When a lone Senate Democrat returned to Texas,

Governor Perry called a third special session to consider

congressional redistricting.

During that third special session, the State Senate and

the State House passed maps that would have apparently

avoided any violation of the Voting Rights Act, because

they would have, inter alia, essentially preserved Balderas

District 23, a majority-Latino district in southwest Texas,

and Balderas District 24, a majority-minority district in

the Dallas-Fort Worth area, where black voters consti-

tuted a significant majority of voters in the Democratic

primary and usually elected their candidate of choice in

the general election. Representative Phil King, the redis-

tricting legislation’s chief sponsor in the Texas Ilouse, had

previously proposed fragmenting District 24, but, after

lawvers reviewed the map, King expressed concern that

redrawing District 24 might violate the Voting Rights Act,

Cite as: 548 U.S. (2006) 9

Opinion of STEVENS, J.

and he drafted a new map that left District 24 largely

unchanged.

Nonetheless, the conferees seeking to reconcile the

House and Senate plans produced a map that, as part of

its goal of maximizing Republican political advantage,

significantly altered both Districts 23 and 24 as they had

existed in the Balderas Plan. Balderas District 23 was

extended north to take in roughly 100,000 new people who

were predominately Anglo and Republican, and was also

moved west, thus splitting Webb County and the City of

Laredo, and pushing roughly 100,000 people who were

predominately Latino and Democratic into an adjacent

district. Session, 298 F.Supp. 2d, at 488-489. Black

voters who previously resided in Balderas District 24 were

fragmented into five new districts, each of which is pre-

dominately Anglo and Republican. See App. 104-106.

Representative King testified at trial that District 24 was

cracked even though cracking the district was not “‘the

path of least resistance’” in terms of avoiding Voting

Rights Act liability, because leaving Balderas District 24

intact would not “accomplish our political objectives.”

State Post-Trial Brief 51-52 (quoting transcript). This

map was ultimately enacted into law as Plan 1374C.

The overall effect of Plan 1874C was to shift more than

eight million Texans into new districts, and to split more

counties into more pieces than the Balderas Plan. More-

over, the 32 districts in Plan 1374C are, on average, much

less compact under either of two standard measures than

their counterparts had been under the Balderas Plan. See

App. 177-178 (expert report of Professor Gaddie).*

Numerous parties filed suit in federal court challenging

“These two standard measures of compactness are the perimeter-to-

area score, Which compares the relative length of the perimeter of a

district to its area, and the smallest circle score, which compares the

ratio of space in the district to the space in the smallest circle that

could encompass the district. App. 178.

10 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

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Opinion of STEVENS, J.

Plan 1374C on the grounds that it violated §2 of the Vot-

ing Rights Act and that it constituted an unconstitutional

partisan gerrymander. A three-judge panel—two of whom

also were members of the Balderas court—rejected these

challenges, over Judge Ward’s partial dissent on the §2

claims. See Session, 298 F. Supp. 2d 451. Responding to

plaintiffs’ appeals, we remanded for reconsideration in

light of Vieth, 541 U.S. 267. See 543 U.S. 941 (2004).

In a characteristically thoughtful opinion written by

Judge Higginbotham, the District Court again rejected all

challenges to the constitutionality of Plan 1874C. See

Henderson, 399 I. Supp. 2d 756. It correctly found that

the Constitution does not prohibit a state legislature from

redrawing congressional districts in the middle of a census

cycle, see id., at 766, and it also correctly recognized that

this Court has not yet endorsed clear standards for judg-

ing the validity of partisan gerrymanders, see id., at 760-

762. Because the District Court’s original decision, and its

reconsideration of the case in the light of the several opin-

ions in Vieth v. Jubelirer, are successive chapters in the

saga that began with Balderas, it is appropriate to quote

this final comment from that opinion before addressing the

principal question that is now presented. The Balderas

court concluded:

“Finally, to state directly what is implicit in all that

we have said: political gerrymandering, a purely par-

tisan exercise, is inappropriate for a federal court

drawing a congressional redistricting map. Even at

the hands of a legislative body, political gerrymander-

ing is much a bloodfeud, in which revenge is exacted

by the majority against its rival. We have left it to the

political arena, as we must and wisely should. We do

so because our role is limited and not because we see

gerrymandering as other than what it is: an abuse of

power that, at its core, evinces a fundamental distrust

Cite as: 548 U.S. (2006) ll

Opinion of STEVENS, J.

of voters, serving the self-interest of the political par-

ties at the expense of the public good.” App. to Juris.

Statement 209a-—210a (footnote omitted).

The unique question of law that is raised in this appeal is

one that the Court has not previously addressed. That

narrow question is whether it was unconstitutional for

Texas to replace a lawful districting plan “in the middle of

a decade, for the sole purpose of maximizing partisan

advantage.” Juris. Statement in No. 05-276, p. i. This

question is both different from, and simpler than, the

principal question presented in Vieth v. Jubelirer, in which

the “‘lack of judicially discoverable and manageable stan-

dards” prevented the plurality from deciding the merits of a

statewide challenge to a political gerrymander. 541 U.S., at

277-278.

As the State points out, -“in’ every _ political-

gerrymandering claim the Court has considered, the focus

has been on the map itself, not on the decision to create

the map in the first place.” Brief for State Appellees 33.

In defense of the map itself, rather than the basic decision

whether to draw the map in the first place, the State notes

that Plan 1374C’s district borders frequently follow county

lines and other neutral criteria. At what the State de-

scribes as the relevant “level of granularity,” the State

correctly points out that appellants. have not even at-

tempted to argue that every district line was motivated

solely for partisan gain. Ibid. See also ante, at 11 (opinion

of KENNEDY, J.) (noting that “partisan aims did not guide

every line” in Plan 13874C). Indeed, the multitude of

“granular” decisions that are made during redistricting

was part of why the Viet) plurality concluded, in the

context of a statewide challenge to a redistricting plan

promulgated in response to a legal obligation to redistrict,

that there are no manageable standards to govern

12 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

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Opinion of STEVENS, J.

whether the predominant motivation underlying the

entire redistricting map was partisan. See 541 U.S., at

285. But see id., at 355 (BREYER, J., dissenting) (arguing

that there are judicially manageable standards to assess

statewide districting challenges even when a plan is en-

acted in response to a legal obligation to redistrict). -

Unlike Vieth, the narrow question presented by the

statewide challenge in this litigation is whether the

State's decision to draw the map in the first place, when it

was under no legal obligation to do so, was permissible. It

is undeniable that identifying the motive for making that

basic decision is a readily manageable judicial task. See

Gomillion v. Lightfoot, 364 U.S. 339, 341 (1960) (noting

that plaintiffs’ allegations, if true, would establish by

circumstantial evidence “tantamount for all practical

purposes to a mathematical demonstration,” that redis-

tricting legislation had been enacted “solely” to segregate

voters along racial lines); cf. Personnel Administrator of

Mass. v. Feeney, 442 U.S. 256, 276-280 (1979) (analyzing

whether the purpose of a law was to discriminate against

women). Indeed, although the Constitution places no per

se ban on midcycle redistricting, a legislature’s decision to

redistrict in the middle of the census cycle, when the

legislature is under no legal obligation to do so, makes the

judicial task of identifying the legislature’s motive simpler

than it would otherwise be. As JUSTICE BREYER has

pointed out, “the presence of midcycle redistricting, for

any reason, raises a fair inference that partisan machina-

tions played a major role in the map-drawing process.”

Vieth, 541 U.S., at 367 (dissenting opinion).

The conclusion that courts can easily identify the motive

for redistricting when the legislature is under no legal

obligation to act is reinforced by the record in this very

case. The District Court’ unambiguously identified the

sole purpose behind the decision to promulgate Plan

1374C: a desire to maximize partisan advantage. See

Cite as: 548 U. S. (2006) 13

Opinion of STEVENS, J.

Session, 298 F. Supp. 2d, at 472 (It was clear from the

evidence” that Republicans “‘decided to redraw the state’s

congressional districts solely for the purpose of seizing

between five and seven seats from Democratic incum-

bents’” (quoting amicus brief filed in Vieth v. Jubelirer);

298 F. Supp., at 470 (“There is little question but that the

single-minded purpose of the Texas Legislature in enact-

ing Plan 1374C was to gain partisan advantage”). It does

not matter whether the District Court’s description of that

purpose qualifies as a specific finding of fact because it is

perfectly clear that there is more than ample evidence in

the record to support such a finding. This evidence in-

cludes: (1) testimony from state legislators; (2) the proce-

dural irregularities described above that accompanied the

adoption of Plan 1374C, including the targeted abolition of

the longstanding two-thirds rule, designed to protect. the

rights of the minority party, in the Texas Senate; (3) Plan

1374C’s significant departures from the neutral districting

criteria of compactness and respect for county lines; (4) the

plan’s excessive deviations from prior districts, which

interfere with the development of strong relationships

between Members of Congress and their constituents; and

(5) the plan’s failure to comply with the Voting Rights Act.

Indeed, the State itself conceded that “|t}he overwhelming

evidence demonstrated that partisan gain was the moti-

vating force behind the decision to redistrict in 2003.”

State Post-Trial Brief 51. In my judgment, there is not

even a colorable basis for contending that the relevant

intent—in this case a purely partisan intent®*—cannot be

°The State suggests that tn the process of drawing districts the archi-

tects of Plan 1374C frequently followed county lines, made an effort to

keep certain entire communities within a given district and otherwise

followed certain neutral principles. But these facts are not relevant to

the narrow question presented by these cases: Neutral motivations in

the implementation of particular features of the redistricting do not

qualify the solely partisan motivation behind the basic decision to adopt

l4 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

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identified on the basis of admissible evidence in the

record.4

Of course, the conclusions that courts are fully capable

of analyzing the intent behind a decision to redistrict, and

that desire for partisan gain was the sole factor motivating

the decision to redistrict at issue here, do not resolve the

question whether proof of a single-minded partisan intent

is sufficient to establish a constitutional violation.

On the merits of that question, the State seems to as-

sume that our decision in Upham v. Seamon, 456 U.S. 37

(1982) (per curiam), has already established the legisla-

ture’s right to replace a court-ordered plan with a plan

drawn for purely partisan purposes. JUSTICE KENNEDY

ultimately indulges in a similar assumption, relying on

Upham for the proposition that “our decisions have as-

sumed that state legislatures are free to replace court-

mandated remedial plans by enacting redistricting plans

of their own.” Ante, at 9. JUSTICE KENNEDY recognizes

that “|jjudicial respect for legislative plans, however,

cannot justify legislative reliance on improper criteria for

districting determinations.” /bid. But JUSTICE KENNEDY

then incorrectly concludes that the singular intent to

an entirely unnecessary plan in the first place.

4As noted above, rather than identifying any arguably neutral rea-

sons for adopting Plan 1374C, the record establishes a purely partisan

single-minded motivation with unmistakable clarity. Therefore, there

is no need at this point to discuss standards that would guide judges in

enforcing a rule allowing legislatures to be motivated in part by parti-

san considerations. but which would impose an “obligation not to apply

too much partisanship in districting.” Vieth v. Jubelirer, 541 U.S. 267.

286 (2004) (plurality opinion). Deciding that 100% is “too much” is not

only a manageable decision, but, as explained below, it is also an

obviously correct one. Nonetheless. it is worth emphasizing that courts

do, in fact, possess the tools to employ standards that permit legisla-

tures to consider partisanship in the redistricting process, but which do

not allow legislatures to use partisanship as the predominant motiva-

tion for their actions. See Part LV, infra.

Cite as: 548 U.S. (2006) 15

Opinion of STEVENS, J.

maximize partisan advantage is not, in itself, such an

improper criterion. Ante, at 11. -

This reliance on Upham overlooks critical distinctions

between the redistricting plan the District Court drew in

Upham and the redistricting plan the District Court drew

in Balderas. The judicial plan in Upham was created to

provide an interim response to an objection by the Attor-

ney General that two contiguous districts in a plan origi-

nally drafted by the Texas Legislature violated §5 of the

Voting Rights Act. We concluded that, in fashioning its

interim remedy, the District Court had erroneously “sub-

stituted its own reapportionment preferences for those of

the state legislature.” 456 U.S., at 40. We held that

when judicial relief was necessary because a state legisla-

ture had failed “‘to reapportion according to federal consti-

tutional jor statutory] requisites in a timely fashion after

having had an adequate opportunity to do so,” the federal

court should, as much as possible “‘follow the policies and

preferences of the State,” in creating a new map. Z7d., at.

41 (quoting White v. Weiser, 412 U.S. 783, 794-795

(1973)). We did not suggest that federal courts should

honor partisan concerns, but rather identified the relevant

state policies as those “‘expressed in statutory and consti-

tutional provisions or in the reapportionment plans pro-

posed by the state legislature, whenever adherence to

state policy does not detract from the requirements of the

Federal Constitution.” Upham, 456 U.S., at 41 (quoting

White, 412 U.S., at 794—795). Because the District Court

in Upham had exceeded its authority in drawing a new

districting map, we made clear that the legislature was

aathorized to remedy the §5 violation with a map of its

own choosing. See 456 U.S., at 44. Upham, then, stands

only for the proposition that a state legislature is author-

ized to redraw a court-drawn congressional districting

map when a district court has exceeded its remedial au-

thority. Upham does not stand for the proposition that,

16 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

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Opinion of STEVENS, J.

after a State embraces a valid, neutral court-drawn plan

by asking this Court to affirm the opinion creating that

plan, the State may then redistrict for the sole purpose of

disadvantaging a minority political party..

Indeed, to conclude otherwise would reflect a fundamen-

tal misunderstanding of the reason why we have held that

state legislatures, rather than federal courts, should have

the primary task of creating apportionment plans that

comport with federal law. We have so held because “a

state legislature is the institution that is by far the best

situated to identify and then reconcile traditional state

policies” with the requirements of federal law, Finch, 431

U.S., at 414-415, not because we wish to supply a domi-

nant party with an opportunity to disadvantage its politi-

cal opponents. Indeed, a straightforward application of

settled constitutional law leads to the inescapable conclu-

sion that the State may not decide to redistrict if its sole

motivation is “to minimize or cancel out the voting

strength of racial or political elements of the voting popu-

lation,” Fortson, 379 U.S., at 439 (emphasis added).

The requirements of the Federal Constitution that limit

the State’s power to rely exclusively on partisan prefer-

ences in drawing district lines are the Fourteenth

Amendment's prohibition against invidious discrimina-

tion, and the First Amendment's protection of citizens -

from official retaliation based on their political affiliation.

The equal protection component of the Fourteenth

Amendment requires actions taken by the sovereign to be

supported by some legitimate interest, and further estab-

lishes that a bare desire to harm a politically disfavored

group is not a legitimate interest. See, e.g., Cleburne v.

’ Cleburne Living Center, Inc., 473 U.S. 432, 447 (1985).

Similarly, the freedom of political belief and association

guaranteed by the First Amendment prevents the State,

absent a compelling interest, from “penalizing citizens

because of their participation in the electoral process, . . .

Cite as: 548 U.S. (2006) 17

Opinion of STEVENS, J.

their association with a political party, or their expression

of political views.” Vieth, 541 U.S., at 314 (KENNEDY, J.,

concurring in judgment) (citing Elrod v. Burns, 427 U.S.

347 (1976) (plurality opinion)). These protections embod-

ied in the First and Fourteenth Amendments reflect. the

fundamental duty of the sovereign to govern impartially.

E.g., Lehr v. Robertson, 463 U.S. 248, 265 (1983); New

York City Transit Authority v. Beazer, 440 U.S. 568

(1979).

The legislature’s decision to redistrict at issue in this

litigation was entirely inconsistent with these principles.

By taking an action for the sole purpose of advantaging

Republicans and disadvantaging Democrats, the State of

Texas violated its constitutional obligation to govern

impartially. “Ifa State passed an enactment that declared

‘All future apportionment shall be drawn so as most to

burden Party X’s rights to fair and effective representa-

tion, though still in accord with one-person, one-vote

principles, we would surely conclude the Constitution had

been violated.” Vieth, 541 U.S., at 812 (KENNEDY, J.,

concurring in judgment).

II

Relying solely on Vieth, JUSTICE KENNEDY maintains

that even if legislation is enacted based solely on a desire

to harm a politically unpopular minority, this fact is insul-

ficient to establish unconstitutional partisan gerryman-

dering absent proof that the legislation did in fact burden

“the complainants’ representative rights.” Anite, at 11.

This conclusion—which clearly goes to the merits, rather

than the manageability, of a partisan gerrymandering

claim—is not only inconsistent with the constitutional

requirement that state action must be supported by a

legitimate interest, but also provides an insufficient re-

sponse to appellants’ claim on the merits.

JUSTICE KENNEDY argues that adopting “the modified

18 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

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Opinion of STEVENS, J.

sole-intent test” could “encourage partisan excess at the

outset of the decade, when a legislature redistricts pursu-

ant to its decennial constitutional duty and is then im-

mune from the charge of sole-motivation.” Ante, at 12-13,

But this would be a problem of the Court’s own making.

As the decision in Cox v. Larios, 542 U.S. 947, demon-

strates, there are, in fact, readily manageable judicial

standards that would allow injured parties to challenge

excessive (and unconstitutional) partisan gerrymandering

undertaken in response to the release of the decennial

census data.© See also Vieth, 541 U.S., at 328-339

(STEVENS, J., dissenting); id., at 347-3853 (SOUTER, d.,

joined by GINSBURG, J., dissenting); id., at 365-367

(BREYER, J., dissenting). JUSTICE KENNEDY’s concern

about a heightened incentive to engage in such excessive

partisan gerrymandering would be avoided if the Court

were willing to enforce those standards.

In any event, JUSTICE KENNEDY’s additional require-

ment that there be proof that the gerrymander did in fact

burden the complainants’ representative rights is clearly

satisfied by the record in this litigation. Indeed, the

‘See Larios v. Cox, 300 F. Supp. 2d 1320, 13842-1353 (ND Ga. 2004)

(per curiam). In Cox, the three-judge District Court undertook a

searching review of the entire record in concluding that the population

deviations in the state legislative districts created for the Georgia

House and Senate after the release of the 2000 census data were not

driven by any traditional redistricting criteria, such as compactness or

preserving county lines, but were instead driven by the impermissible

factors of regional favoritism and the discriminatory protection of

Democratic incumbents. If there were no judicially manageable stan-

dards to assess whether a State's adoption of a redistricting map was

based on valid governmental objectives, we would not have summarily

affirmed the decision in Cox over the dissent of only one Justice. See

542 U.S. 947; id., at 951 (SCALIA, J.. dissenting). In addition, as Part

Il] of thé Court's opinion and this Part of my opinion demonstrate,

assessing whether a redistricting map has a discriminatory impact on

the opportunities for voters and candidates of a particular party to

influence the political process is a manageable judicial task.

Cite as: 548 U.S. (2006) 19

-

Opinion of STEVENS, J.

Court’s accurate exposition of the reasons why the changes

to District 28 diluted the voting rights of Latinos who

remain in that district simultaneously explains why those

changes also disadvantaged Democratic voters and thus

demonstrates that the effects of a political gerrymander

can be evaluated pursuant to judicially manageable

standards.

In my judgment the record amply supports the conclu-

sion that Plan 1374C not only burdens the minority party

in District 23, but also imposes a severe statewide burden

on the ability of Democratic voters and politicians to influ-

ence the political process.°

In arguing that Plan 1374C does not impose an uncon-

stitutional burden on Democratic voters and candidates,

the State takes the position that the plan has resulted in

an equitable distribution of political power between the

State’s two principal political parties. The State empha-

sizes that in the 2004 elections—held pursuant to Plan

1374C—Republicans won 21 of 32, or 66%, of the congres-

sional seats. That same year, Republicans carried 58% of

ihe vote in statewide elections. Admittedly, these num-

bers do suggest that the State’s congressional delegation

was “roughly proportional” to the parties’ share of the

statewide vote, Brief for State Appellees 44, particularly in

light of the fact that our electoral system tends to produce

a “seat bonus” in which a party that wins a majority of the

vote generally wins an even larger majority of the seats,

see Brief for Alan Heslop et al. as Amici Curiae (describing

the seat. bonus phenomenon). Cf. ante, at. 12 (opinion of

KENNEDY, J.) (arguing that, compared to the redistricting

plan challenged in Vieth, “Plan 1374C can be seen as

Although the burdened group at issue in this litigation consists of

Democratic voters and. candidates, the partisan gerrymandering

analysis throughout this opinion would be equally applicable to any

“politically coherent group whose members engaged in bloc voting.”

Vieth, 541 U.S... at 347 (Souter, J., joined by Ginsburc. J.. dissenting).

20 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

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Opinion of STEVENS, J.

making the party balance more congruent to statewide

party power’).

That Plan 1374C produced a “roughly proportional”

congressional delegation in 2004 does not, however, an-

swer the question whether the plan has a discriminatory

effect against Democrats. As appellants point out,

whether a districting map is biased against a_ political

party depends upon the bias in the map itself—in other

words, it depends upon the opportunities that the map

offers each party, regardless of how candidates perform in

a given year. And, as the State’s expert found in this

litigation, Plan 1374C clearly has a discriminatory effect

in terms of the opportunities it offers the two principal

political parties in Texas. Indeed, that discriminatory

effect is severe.

According to Professor Gaddie, the State’s expert, Plan

1374C gives Republicans an advantage in 22 of 32 con-

gressional seats. The plaintiffs’ expert, Professor Alford,

who had been cited favorably by the Balderas Court. as

having applied a “neutral approach” to redistricting in

that litigation, App. to Juris. Statement 207a, agreed. [le

added that, in his view, the only surprise from the 2004

elections was “how far things moved” toward achieving a

22-to-10 pro-Republican split “in a single election year,”

id., at 226a (declaration of John R. Alford, Ph.D.).‘ But

this 22-to-10 advantage does not depend on Republicans

winning the 58% share of the statewide vote that they

7In the 2004 congressional elections, Republicans won 21 of the 2u

seats that had been designed to favor Republicans in Plan 1371C. One

Democratic incumbent, Representative Chet Edwards, narrowly de-

feated (with 51% of the vote) his nonincumbent Republican challenger

in a Republican-leaning district; Edwards outspent his challenger. who

lacked strong ties to the principal communities in the district. Republ-

cans are likely to spend more money and find a stronger challenger in

2006, which will create a “very significant chance” of a Republican

defeating Edwards. App. to Juris. Statement 224a, 226a.

Cite as: 548 U.S. (2006) 21

‘ Opinion of STEVENS, J.

received in 2004. Instead, according to Professor Gaddie,

Republicans would be likely to carry 22 of 32 congressional

seats if they won only 52% of the statewide vote. App.

216, 229. Put differently, Plan 1374C ensures that, even if

the Democratic Party succeeds in convincing 10% of the

people who voted for Republicans in the last statewide

elections to vote for Democratic congressional candidates,*

which would constitute a major electoral shift, there is

unlikely to be any change in the number of congressional

seats that Democrats win. Moreover, Republicans would

still have an overwhelming advantage if Democrats

achieved full electoral parity. According to Professor

Gaddie’s analysis, Republicans would be likely to carry 20

of the 32 congressional seats even if they only won 50%

(or, for that matter, 49%) of the statewide vote. /d., at

216, 229-230. This demonstrates that Plan 1374C is

inconsistent with the symmetry standard, a measure

social scientists use to assess partisan bias, which is un-

doubtedly “a reliable standard” for measuring a “bur-

den... on the complainants’ representative rights,” ante,

at 11 (opinion of KENNEDY, J.).

The symmetry standard “requires that the electoral

system treat similarly-situated parties equally, so that

each receives the same fraction of legislative seats for a

particular vote percentage as the other party would re-

ceive if it had received the same percentage.” Brief for

Gary King etal. as Amici Curiae 4—5. This standard is

widely accepted by scholars as providing a measure of

partisan fairness in electoral systems. See, e.g., Tufte,

The Relationship Between Seats and Votes in Two-Party

Systems, 67 Am. Pol. Sci. Rev. 540, 542-543 (1973); Cel-

®If 10% of Republican voters decided to vote for Democratic candidates,

and if there were no other changes in voter turnout or preferences, the

Republicans’ share of the statewide vote would be reduced from 58% to

52%.

be

to

LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

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Opinion of STEVENS, J.

man & King, knhancing Democracy Through Legislative

Redistricting, 88 Am. Pol. Sci. Rev. 541, 545 (1994);

Thompson, Election Time: Normative Implications of

Temporal Properties of the Electoral Process in the United

States, 98 Am. Pol. Sci. Rev. 51, 58, and n. 7 (2004); Eng-

strom & Kernell, Manufactured Responsiveness: The

Impact of State Electoral Laws on Unified Party Control of

the Presidency and House of Representatives, 1840-1940,

A9 Am. J. Pol. Sci. 531, 541 (2005). Like other models that

experts use in analyzing vote dilution claims, compliance

with the symmetry standard is measured by extrapolating

from a sample of known data, see, e.g., Thornburg v.

Gingles, 478 U.S. 30, 53 and n. 20 (1986) (discussing ex-

treme case analysis and bivariate ecological regression

analysis). In this litigation, the symmetry standard was

not simply proposed by an amicus to this Court, it was

also used by the expert for plaintiffs and the expert for the

State in assessing the degree of partisan bias in Plans

1151C and 1374C. See App. 34-42 (report of Professor

Alford); id., at 189-1938, 216 (report of Professor Gaddie).

Because, as noted above, Republicans would have an

advantage in a significant majority of seats even if the

statewide vote were equally distributed between Republi-

cans and Democrats, Plan 1374C constitutes a significant

departure from the symmetry standard. By contrast,

based on Professor Gaddie’s evaluation, the Balderas Plan,

though slightly biased in favor of Republicans, provided

markedly more equitable opportunities to Republicans and

Democrats. For example, consistent with the symmetry

standard, under Plan 1151C the parties were likely to

each take 16 congressional seats if they won 50% of the

statewide vote. See App. 216.

Plan 1374C then, clearly has a discriminatory impact on

the opportunities that Democratic citizens have to elect

candidates of their choice. Moreover, this discriminatory

effect cannot bé dismissed as de minimis. According to the

Cite as: 548 U.S. (2006) 23

Opinion of STEVENS, J.

State’s expert, if each party receives half the statewide

vote, under Plan 1374C the Republicans would carry

62.5% (20) of the congressional seats, whereas the Democ-

rats would win 37.5% (12) of those seats. In other words,

at. the vote distribution point where a politically neutral

map would result in zero differential in the percentage of

seats captured by each party, Plan 1374C is structured to

create a 25% differential. When a redistricting map im-

poses such a significant disadvantage on a_ politically

salient group of voters, the State should shoulder the

burden of defending the map. Cf. Brown v. Thomson, 462

U.S. 835, 842-843 (1983) (holding that the implementa-

tion of a redistricting plan for state legislative districts

with population deviations over 10% creates a prima facie

case of discrimination under the Equal Protection Clause,

thus shifting the burden to the State to defend the plan);

Larios v. Cox, 300 F. Supp. 2d 1320, 1339-1340 (ND Ga.)

(per curiam), summarily aff'd, 542 U.S. 947 (2004) (same,

but further pointing out that the “‘ten percent rule’” is not

a safe harbor, and concluding that, under the circum-

stances of the case before it, a state legislative districting

plan was unconstitutional even though population devia-

tions were under 10%). At the very least, once plaintiffs

have established that the legislature’s sole purpose in

adopting a plan was partisan—as plaintiffs have estab-

lished in this action, see Part II, supra—such a severe

(liscriminatory effect should be sufficient to meet any

additional burden they have to demonstrate that

the redistricting map accomplishes its discriminatory

purpose.°

*JusTICE KENNEDY faults proponents of the symmetry standard for

not “providing a standard for deciding how much partisan bias is too

much,” ante. at 13. But it is this Court, not proponents of the symme-

try standard, that has the judicial obligation to answer the question of

how much unfairness is too much. It would, of course, be an eminently

manageable standard for the Court to conclude that deviations of over

24 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

PERRY

Opinion of STEVENS, J.

The bias in Plan 1374C is most striking with regard to

its effect on the ability of Democratic voters to elect candi-

dates of their choice, but its discriminatory effect. does not

end there. Plan 1374C also lessens the influence Democ-

ratic voters are likely to be able to exert over Republican

lawmakers, thus further minimizing Democrats’ capacity

to play a meaningful role in the political process.

Even though it “defies political reality to suppose that

members of a losing party have as much political influence

over... government. as do members of the victorious

party,” Davis v. Bandemer, 478 U.S. 109, 170 (1986)

(Powell, J., concurring in part and dissenting in part), the

Court has recognized that “the power to influence the

political process is not limited to winning elections,” id., at

132 (plurality opinion); see also Georgia v. Ashcroft, 539

U.S. 461, 482 (2003). In assessing whether members of a

group whose candidate is defeated at the polls can none-

theless influence the elected representative, it is “impor-

tant to consider ‘the likelihood that candidates elected

without decisive minority support would be willing to take

the minority’s interests into account.” /d., at 482 (quoting

Gingles, 478 U.S., at 100 (O'Connor, J., concurring in

judgment)). One justification for majority rule is that

elected officials will generally “take the minority’s inter-

ests into account,” in part because the majority recognizes

10% from symmetry create a prima facie case of an unconstitutional

gerrymander, just as population deviations among districts of more

than 10% create such a prima facie case. Or, the Court could conclude

that a significant departure from symmetry is one relevant factor in

analyzing whether. under the totality of the circumstances, a district-

ing plan is an unconstitutional partisan gerrymander. See n. 11, infra.

At any rate. proponents of the symmetry standard have provided a

helpful (though certainly not talismanic) tool in this type of litigation.

While I appreciate Justice KENNEDY’s leaving the door open to the use

of the standard in future cases, see ante, at 13. I believe it 1s the role of

this Court, not social scientists. to determine how much partisan

dominance is too much.

Cite as: 548 U.S. (2006) 25

Opinion of STEVENS, J.

that preferences shift. and today’s minority could be tomor-

row’s majority. See, e.g., L. Guinier, Tyranny of the Ma-

jority 77 (1994); J. Ely, Democracy and Distrust 84 (1980);

cf. Letter from James Madison to Thomas Jefferson, (Oct.

24, 1787), reprinted in Republic of Letters 502 (J. Smith

ed. 1995) (arguing that “[t]he great desideratum in Gov-

ernment is... to modify the sovereignty as that it may be

sufficiently neutral between different parts of the Society”

and thus prevent a fixed majority from oppressing the

minority). Indeed, this Court has concluded that our

system of representative democracy is premised on the

assumption that elected officials will seek to represent

their constituency as a whole, rather than any dominant

faction within that constituency. See Shaw v. Reno, 509

U.S. 630, 648 (1993).

Plan 13874C undermines this crucial assumption that

congressional representatives from the majority party (in

this case Republicans) will seek to represent their entire

constituency. “When a district obviously is created solely

to effectuate the perceived common interests of one racial

group, elected officials are more likely to believe that their

primary obligation is to represent only the members of

that group, rather than-their constituency as a whole.”

Ibid. Shaw's analysis of representational harms in the

racial gerrymandering context applies

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