Rucho v. Common Cause

(Slip Opinion) OCTOBER TERM, 2018 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
RUCHO ET AL. v. COMMON CAUSE ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF NORTH CAROLINA
No. 18–422. Argued March 26, 2019—Decided June 27, 2019*
Voters and other plaintiffs in North Carolina and Maryland filed suits
challenging their States’ congressional districting maps as unconsti-
tutional partisan gerrymanders. The North Carolina plaintiffs
claimed that the State’s districting plan discriminated against Demo-
crats, while the Maryland plaintiffs claimed that their State’s plan
discriminated against Republicans. The plaintiffs alleged violations
of the First Amendment, the Equal Protection Clause of the Four-
teenth Amendment, the Elections Clause, and Article I, §2. The Dis-
trict Courts in both cases ruled in favor of the plaintiffs, and the de-
fendants appealed directly to this Court.
Held: Partisan gerrymandering claims present political questions be-
yond the reach of the federal courts. Pp. 6–34.
(a) In these cases, the Court is asked to decide an important ques-
tion of constitutional law. Before it does so, the Court “must find that
the question is presented in a ‘case’ or ‘controversy’ that is . . . ‘of a
Judiciary Nature.’ ” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332,
342. While it is “the province and duty of the judicial department to
say what the law is,” Marbury v. Madison, 1 Cranch 137, 177, some-
times the law is that the Judiciary cannot entertain a claim because
it presents a nonjusticiable “political question,” Baker v. Carr, 369
U.S. 186, 217. Among the political question cases this Court has
identified are those that lack “judicially discoverable and manageable
standards for resolving [them].” Ibid. This Court’s partisan gerry-
mandering cases have left unresolved the question whether such
claims are claims of legal right, resolvable according to legal princi-
——————
*Together with No. 18–726, Lamone et al. v. Benisek et al., on appeal
from the United States District Court for the District of Maryland.
2 RUCHO v. COMMON CAUSE
Syllabus
ples, or political questions that must find their resolution elsewhere.
See Gill v. Whitford, 585 U. S. ___, ___.
Partisan gerrymandering was known in the Colonies prior to Inde-
pendence, and the Framers were familiar with it at the time of the
drafting and ratification of the Constitution. They addressed the
election of Representatives to Congress in the Elections Clause,
Art. I, §4, cl. 1, assigning to state legislatures the power to prescribe
the “Times, Places and Manner of holding Elections” for Members of
Congress, while giving Congress the power to “make or alter” any
such regulations. Congress has regularly exercised its Elections
Clause power, including to address partisan gerrymandering. But
the Framers did not set aside all electoral issues as questions that
only Congress can resolve. In two areas—one-person, one-vote and
racial gerrymandering—this Court has held that there is a role for
the courts with respect to at least some issues that could arise from a
State’s drawing of congressional districts. But the history of partisan
gerrymandering is not irrelevant. Aware of electoral districting prob-
lems, the Framers chose a characteristic approach, assigning the is-
sue to the state legislatures, expressly checked and balanced by the
Federal Congress, with no suggestion that the federal courts had a
role to play.
Courts have nonetheless been called upon to resolve a variety of
questions surrounding districting. The claim of population inequality
among districts in Baker v. Carr, for example, could be decided under
basic equal protection principles. 369 U.S., at 226. Racial discrimi-
nation in districting also raises constitutional issues that can be ad-
dressed by the federal courts. See Gomillion v. Lightfoot, 364 U.S.
339, 340. Partisan gerrymandering claims have proved far more dif-
ficult to adjudicate, in part because “a jurisdiction may engage in
constitutional political gerrymandering.” Hunt v. Cromartie, 526
U.S. 541, 551. To hold that legislators cannot take their partisan in-
terests into account when drawing district lines would essentially
countermand the Framers’ decision to entrust districting to political
entities. The “central problem” is “determining when political ger-
rymandering has gone too far.” Vieth v. Jubelirer, 541 U.S. 267, 296
(plurality opinion). Despite considerable efforts in Gaffney v. Cum-
mings, 412 U.S. 735, 753; Davis v. Bandemer, 478 U.S. 109, 116–
117; Vieth, 541 U.S., at 272–273; and League of United Latin Ameri-
can Citizens v. Perry, 548 U.S. 399, 414 (LULAC), this Court’s prior
cases have left “unresolved whether . . . claims [of legal right] may be
brought in cases involving allegations of partisan gerrymandering,”
Gill, 585 U. S., at ___. Two “threshold questions” remained: stand-
ing, which was addressed in Gill, and “whether [such] claims are jus-
ticiable.” Ibid. Pp. 6–14.
Cite as: 588 U. S. ____ (2019) 3
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(b) Any standard for resolving partisan gerrymandering claims
must be grounded in a “limited and precise rationale” and be “clear,
manageable, and politically neutral.” Vieth, 541 U.S., at 306–308
(Kennedy, J., concurring in judgment). The question is one of degree:
How to “provid[e] a standard for deciding how much partisan domi-
nance is too much.” LULAC, 548 U.S., at 420 (opinion of Kennedy,
J.). Partisan gerrymandering claims rest on an instinct that groups
with a certain level of political support should enjoy a commensurate
level of political power and influence. Such claims invariably sound
in a desire for proportional representation, but the Constitution does
not require proportional representation, and federal courts are nei-
ther equipped nor authorized to apportion political power as a matter
of fairness. It is not even clear what fairness looks like in this con-
text. It may mean achieving a greater number of competitive dis-
tricts by undoing packing and cracking so that supporters of the dis-
advantaged party have a better shot at electing their preferred
candidates. But it could mean engaging in cracking and packing to
ensure each party its “appropriate” share of “safe” seats. Or perhaps
it should be measured by adherence to “traditional” districting crite-
ria. Deciding among those different visions of fairness poses basic
questions that are political, not legal. There are no legal standards
discernible in the Constitution for making such judgments. And it is
only after determining how to define fairness that one can even begin
to answer the determinative question: “How much is too much?”
The fact that the Court can adjudicate one-person, one-vote claims
does not mean that partisan gerrymandering claims are justiciable.
This Court’s one-person, one-vote cases recognize that each person is
entitled to an equal say in the election of representatives. It hardly
follows from that principle that a person is entitled to have his politi-
cal party achieve representation commensurate to its share of
statewide support. Vote dilution in the one-person, one-vote cases re-
fers to the idea that each vote must carry equal weight. That re-
quirement does not extend to political parties; it does not mean that
each party must be influential in proportion to the number of its sup-
porters. The racial gerrymandering cases are also inapposite: They
call for the elimination of a racial classification, but a partisan ger-
rymandering claim cannot ask for the elimination of partisanship.
Pp. 15–21.
(c) None of the proposed “tests” for evaluating partisan gerryman-
dering claims meets the need for a limited and precise standard that
is judicially discernible and manageable. Pp. 22–30.
(1) The Common Cause District Court concluded that all but one
of the districts in North Carolina’s 2016 Plan violated the Equal Pro-
tection Clause by intentionally diluting the voting strength of Demo-
4 RUCHO v. COMMON CAUSE
Syllabus
crats. It applied a three-part test, examining intent, effects, and cau-
sation. The District Court’s “predominant intent” prong is borrowed
from the test used in racial gerrymandering cases. However, unlike
race-based decisionmaking, which is “inherently suspect,” Miller v.
Johnson, 515 U.S. 900, 915, districting for some level of partisan ad-
vantage is not unconstitutional. Determining that lines were drawn
on the basis of partisanship does not indicate that districting was
constitutionally impermissible. The Common Cause District Court
also required the plaintiffs to show that vote dilution is “likely to per-
sist” to such a degree that the elected representatives will feel free to
ignore the concerns of the supporters of the minority party. Experi-
ence proves that accurately predicting electoral outcomes is not sim-
ple, and asking judges to predict how a particular districting map
will perform in future elections risks basing constitutional holdings
on unstable ground outside judicial expertise. The District Court’s
third prong—which gave the defendants an opportunity to show that
discriminatory effects were due to a “legitimate redistricting objec-
tive”—just restates the question asked at the “predominant intent”
prong. Pp. 22–25.
(2) The District Courts also found partisan gerrymandering
claims justiciable under the First Amendment, coalescing around a
basic three-part test: proof of intent to burden individuals based on
their voting history or party affiliation, an actual burden on political
speech or associational rights, and a causal link between the invidi-
ous intent and actual burden. But their analysis offers no “clear” and
“manageable” way of distinguishing permissible from impermissible
partisan motivation. Pp. 25–27.
(3) Using a State’s own districting criteria as a baseline from
which to measure how extreme a partisan gerrymander is would be
indeterminate and arbitrary. Doing so would still leave open the
question of how much political motivation and effect is too much.
Pp. 27–29.
(4) The North Carolina District Court further held that the 2016
Plan violated Article I, §2, and the Elections Clause, Art. I, §4, cl. 1.
But the Vieth plurality concluded—without objection from any other
Justice—that neither §2 nor §4 “provides a judicially enforceable limit
on the political considerations that the States and Congress may
take into account when districting.” 541 U.S., at 305. Any assertion
that partisan gerrymanders violate the core right of voters to choose
their representatives is an objection more likely grounded in the
Guarantee Clause of Article IV, §4, which “guarantee[s] to every
State in [the] Union a Republican Form of Government.” This Court
has several times concluded that the Guarantee Clause does not pro-
Cite as: 588 U. S. ____ (2019) 5
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vide the basis for a justiciable claim. See, e.g., Pacific States Tele-
phone & Telegraph Co. v. Oregon, 223 U.S. 118. Pp. 29–30.
(d) The conclusion that partisan gerrymandering claims are not
justiciable neither condones excessive partisan gerrymandering nor
condemns complaints about districting to echo into a void. Numerous
States are actively addressing the issue through state constitutional
amendments and legislation placing power to draw electoral districts
in the hands of independent commissions, mandating particular dis-
tricting criteria for their mapmakers, or prohibiting drawing district
lines for partisan advantage. The Framers also gave Congress the
power to do something about partisan gerrymandering in the Elec-
tions Clause. That avenue for reform established by the Framers,
and used by Congress in the past, remains open. Pp. 30–34.
318 F. Supp. 3d 777 and 348 F. Supp. 3d 493, vacated and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which THOMAS,
ALITO, GORSUCH, and KAVANAUGH, JJ., joined. KAGAN, J., filed a dis-
senting opinion, in which GINSBURG, BREYER, and SOTOMAYOR, JJ.,
joined.
Cite as: 588 U. S. ____ (2019) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 18–422, 18–726
_________________
ROBERT A. RUCHO, ET AL., APPELLANTS
18–422 v.
COMMON CAUSE, ET AL.; AND
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF NORTH CAROLINA
LINDA H. LAMONE, ET AL., APPELLANTS
18–726 v.
O. JOHN BENISEK, ET AL.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF MARYLAND
[June 27, 2019]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
Voters and other plaintiffs in North Carolina and Mary-
land challenged their States’ congressional districting
maps as unconstitutional partisan gerrymanders. The
North Carolina plaintiffs complained that the State’s
districting plan discriminated against Democrats; the
Maryland plaintiffs complained that their State’s plan
discriminated against Republicans. The plaintiffs alleged
that the gerrymandering violated the First Amendment,
the Equal Protection Clause of the Fourteenth Amend-
ment, the Elections Clause, and Article I, §2, of the Con-
stitution. The District Courts in both cases ruled in favor
2 RUCHO v. COMMON CAUSE
Opinion of the Court
of the plaintiffs, and the defendants appealed directly to
this Court.
These cases require us to consider once again whether
claims of excessive partisanship in districting are “justici-
able”—that is, properly suited for resolution by the federal
courts. This Court has not previously struck down a
districting plan as an unconstitutional partisan gerry-
mander, and has struggled without success over the past
several decades to discern judicially manageable stand-
ards for deciding such claims. The districting plans at
issue here are highly partisan, by any measure. The
question is whether the courts below appropriately exer-
cised judicial power when they found them unconstitu-
tional as well.
I
A
The first case involves a challenge to the congressional
redistricting plan enacted by the Republican-controlled
North Carolina General Assembly in 2016. Rucho v.
Common Cause, No. 18–422. The Republican legislators
leading the redistricting effort instructed their mapmaker
to use political data to draw a map that would produce a
congressional delegation of ten Republicans and three
Democrats. 318 F. Supp. 3d 777, 807–808 (MDNC 2018).
As one of the two Republicans chairing the redistricting
committee stated, “I think electing Republicans is better
than electing Democrats. So I drew this map to help foster
what I think is better for the country.” Id., at 809. He
further explained that the map was drawn with the aim of
electing ten Republicans and three Democrats because he
did “not believe it [would be] possible to draw a map with
11 Republicans and 2 Democrats.” Id., at 808. One Demo-
cratic state senator objected that entrenching the 10–3
advantage for Republicans was not “fair, reasonable, [or]
balanced” because, as recently as 2012, “Democratic con-
Cite as: 588 U. S. ____ (2019) 3
Opinion of the Court
gressional candidates had received more votes on a
statewide basis than Republican candidates.” Ibid. The
General Assembly was not swayed by that objection and
approved the 2016 Plan by a party-line vote. Id., at 809.
In November 2016, North Carolina conducted congres-
sional elections using the 2016 Plan, and Republican
candidates won 10 of the 13 congressional districts. Id., at
810. In the 2018 elections, Republican candidates won
nine congressional districts, while Democratic candidates
won three. The Republican candidate narrowly prevailed
in the remaining district, but the State Board of Elections
called a new election after allegations of fraud.
This litigation began in August 2016, when the North
Carolina Democratic Party, Common Cause (a nonprofit
organization), and 14 individual North Carolina voters
sued the two lawmakers who had led the redistricting
effort and other state defendants in Federal District
Court. Shortly thereafter, the League of Women Voters of
North Carolina and a dozen additional North Carolina
voters filed a similar complaint. The two cases were
consolidated.
The plaintiffs challenged the 2016 Plan on multiple
constitutional grounds. First, they alleged that the Plan
violated the Equal Protection Clause of the Fourteenth
Amendment by intentionally diluting the electoral
strength of Democratic voters. Second, they claimed that
the Plan violated their First Amendment rights by retali-
ating against supporters of Democratic candidates on the
basis of their political beliefs. Third, they asserted that
the Plan usurped the right of “the People” to elect their
preferred candidates for Congress, in violation of the
requirement in Article I, §2, of the Constitution that
Members of the House of Representatives be chosen “by
the People of the several States.” Finally, they alleged
that the Plan violated the Elections Clause by exceeding
the State’s delegated authority to prescribe the “Times,
4 RUCHO v. COMMON CAUSE
Opinion of the Court
Places and Manner of holding Elections” for Members of
Congress.
After a four-day trial, the three-judge District Court
unanimously concluded that the 2016 Plan violated the
Equal Protection Clause and Article I of the Constitution.
The court further held, with Judge Osteen dissenting, that
the Plan violated the First Amendment. Common Cause
v. Rucho, 279 F. Supp. 3d 587 (MDNC 2018). The defend-
ants appealed directly to this Court under 28 U.S. C.
§1253.
While that appeal was pending, we decided Gill v. Whit-
ford, 585 U. S. ___ (2018), a partisan gerrymandering case
out of Wisconsin. In that case, we held that a plaintiff
asserting a partisan gerrymandering claim based on a
theory of vote dilution must establish standing by showing
he lives in an allegedly “cracked” or “packed” district. Id.,
at ___ (slip op., at 17). A “cracked” district is one in which
a party’s supporters are divided among multiple districts,
so that they fall short of a majority in each; a “packed”
district is one in which a party’s supporters are highly
concentrated, so they win that district by a large margin,
“wasting” many votes that would improve their chances in
others. Id., at ___–___ (slip op., at 3–4).
After deciding Gill, we remanded the present case for
further consideration by the District Court. 585 U. S. ___
(2018). On remand, the District Court again struck down
the 2016 Plan. 318 F. Supp. 3d 777. It found standing
and concluded that the case was appropriate for judicial
resolution. On the merits, the court found that “the Gen-
eral Assembly’s predominant intent was to discriminate
against voters who supported or were likely to support
non-Republican candidates,” and to “entrench Republican
candidates” through widespread cracking and packing of
Democratic voters. Id., at 883–884. The court rejected the
defendants’ arguments that the distribution of Republican
and Democratic voters throughout North Carolina and the
Cite as: 588 U. S. ____ (2019) 5
Opinion of the Court
interest in protecting incumbents neutrally explained the
2016 Plan’s discriminatory effects. Id., at 896–899. In the
end, the District Court held that 12 of the 13 districts
constituted partisan gerrymanders that violated the Equal
Protection Clause. Id., at 923.
The court also agreed with the plaintiffs that the 2016
Plan discriminated against them because of their political
speech and association, in violation of the First Amend-
ment. Id., at 935. Judge Osteen dissented with respect to
that ruling. Id., at 954–955. Finally, the District Court
concluded that the 2016 Plan violated the Elections Clause
and Article I, §2. Id., at 935–941. The District Court
enjoined the State from using the 2016 Plan in any elec-
tion after the November 2018 general election. Id., at 942.
The defendants again appealed to this Court, and we
postponed jurisdiction. 586 U. S. ___ (2019).
B
The second case before us is Lamone v. Benisek, No. 18–
726. In 2011, the Maryland Legislature—dominated by
Democrats—undertook to redraw the lines of that State’s
eight congressional districts. The Governor at the time,
Democrat Martin O’Malley, led the process. He appointed
a redistricting committee to help redraw the map, and
asked Congressman Steny Hoyer, who has described
himself as a “serial gerrymanderer,” to advise the commit-
tee. 348 F. Supp. 3d 493, 502 (Md. 2018). The Governor
later testified that his aim was to “use the redistricting
process to change the overall composition of Maryland’s
congressional delegation to 7 Democrats and 1 Republican
by flipping” one district. Ibid. “[A] decision was made to
go for the Sixth,” ibid., which had been held by a Republi-
can for nearly two decades. To achieve the required equal
population among districts, only about 10,000 residents
needed to be removed from that district. Id., at 498. The
2011 Plan accomplished that by moving roughly 360,000
6 RUCHO v. COMMON CAUSE
Opinion of the Court
voters out of the Sixth District and moving 350,000 new
voters in. Overall, the Plan reduced the number of regis-
tered Republicans in the Sixth District by about 66,000
and increased the number of registered Democrats by
about 24,000. Id., at 499–501. The map was adopted by a
party-line vote. Id., at 506. It was used in the 2012 elec-
tion and succeeded in flipping the Sixth District. A Demo-
crat has held the seat ever since.
In November 2013, three Maryland voters filed this
lawsuit. They alleged that the 2011 Plan violated the
First Amendment, the Elections Clause, and Article I, §2,
of the Constitution. After considerable procedural skir-
mishing and litigation over preliminary relief, the District
Court entered summary judgment for the plaintiffs. 348
F. Supp. 3d 493. It concluded that the plaintiffs’ claims
were justiciable, and that the Plan violated the First
Amendment by diminishing their “ability to elect their
candidate of choice” because of their party affiliation and
voting history, and by burdening their associational
rights. Id., at 498. On the latter point, the court relied
upon findings that Republicans in the Sixth District “were
burdened in fundraising, attracting volunteers, campaign-
ing, and generating interest in voting in an atmosphere of
general confusion and apathy.” Id., at 524.
The District Court permanently enjoined the State from
using the 2011 Plan and ordered it to promptly adopt a
new plan for the 2020 election. Id., at 525. The defend-
ants appealed directly to this Court under 28 U.S. C.
§1253. We postponed jurisdiction. 586 U. S. ___ (2019).
II
A
Article III of the Constitution limits federal courts to
deciding “Cases” and “Controversies.” We have under-
stood that limitation to mean that federal courts can
address only questions “historically viewed as capable of
Cite as: 588 U. S. ____ (2019) 7
Opinion of the Court
resolution through the judicial process.” Flast v. Cohen,
392 U.S. 83, 95 (1968). In these cases we are asked to
decide an important question of constitutional law. “But
before we do so, we must find that the question is presented
in a ‘case’ or ‘controversy’ that is, in James Madison’s
words, ‘of a Judiciary Nature.’ ” DaimlerChrysler Corp. v.
Cuno, 547 U.S. 332, 342 (2006) (quoting 2 Records of the
Federal Convention of 1787, p. 430 (M. Farrand ed. 1966)).
Chief Justice Marshall famously wrote that it is “the
province and duty of the judicial department to say what
the law is.” Marbury v. Madison, 1 Cranch 137, 177
(1803). Sometimes, however, “the law is that the judicial
department has no business entertaining the claim of
unlawfulness—because the question is entrusted to one of
the political branches or involves no judicially enforceable
rights.” Vieth v. Jubelirer, 541 U.S. 267, 277 (2004) (plu-
rality opinion). In such a case the claim is said to present
a “political question” and to be nonjusticiable—outside the
courts’ competence and therefore beyond the courts’ juris-
diction. Baker v. Carr, 369 U.S. 186, 217 (1962). Among
the political question cases the Court has identified are
those that lack “judicially discoverable and manageable
standards for resolving [them].” Ibid.
Last Term in Gill v. Whitford, we reviewed our partisan
gerrymandering cases and concluded that those cases
“leave unresolved whether such claims may be brought.”
585 U. S., at ___ (slip op., at 13). This Court’s authority to
act, as we said in Gill, is “grounded in and limited by the
necessity of resolving, according to legal principles, a
plaintiff ’s particular claim of legal right.” Ibid. The
question here is whether there is an “appropriate role for
the Federal Judiciary” in remedying the problem of parti-
san gerrymandering—whether such claims are claims of
legal right, resolvable according to legal principles, or
political questions that must find their resolution else-
where. Id., at ___ (slip op., at 8).
8 RUCHO v. COMMON CAUSE
Opinion of the Court
B
Partisan gerrymandering is nothing new. Nor is frus-
tration with it. The practice was known in the Colonies
prior to Independence, and the Framers were familiar
with it at the time of the drafting and ratification of the
Constitution. See Vieth, 541 U.S., at 274 (plurality opin-
ion). During the very first congressional elections, George
Washington and his Federalist allies accused Patrick
Henry of trying to gerrymander Virginia’s districts against
their candidates—in particular James Madison, who
ultimately prevailed over fellow future President James
Monroe. Hunter, The First Gerrymander? 9 Early Am.
Studies 792–794, 811 (2011). See 5 Writings of Thomas
Jefferson 71 (P. Ford ed. 1895) (Letter to W. Short (Feb. 9,
1789)) (“Henry has so modelled the districts for represent-
atives as to tack Orange [county] to counties where he
himself has great influence that Madison may not be
elected into the lower federal house”).
In 1812, Governor of Massachusetts and future Vice
President Elbridge Gerry notoriously approved congres-
sional districts that the legislature had drawn to aid the
Democratic-Republican Party. The moniker “gerryman-
der” was born when an outraged Federalist newspaper
observed that one of the misshapen districts resembled a
salamander. See Vieth, 541 U.S., at 274 (plurality opin-
ion); E. Griffith, The Rise and Development of the Gerry-
mander 17–19 (1907). “By 1840, the gerrymander was a
recognized force in party politics and was generally at-
tempted in all legislation enacted for the formation of
election districts. It was generally conceded that each
party would attempt to gain power which was not propor-
tionate to its numerical strength.” Id., at 123.
The Framers addressed the election of Representatives
to Congress in the Elections Clause. Art. I, §4, cl. 1. That
provision assigns to state legislatures the power to pre-
scribe the “Times, Places and Manner of holding Elec-
Cite as: 588 U. S. ____ (2019) 9
Opinion of the Court
tions” for Members of Congress, while giving Congress the
power to “make or alter” any such regulations. Whether to
give that supervisory authority to the National Govern-
ment was debated at the Constitutional Convention.
When those opposed to such congressional oversight
moved to strike the relevant language, Madison came to
its defense:
“[T]he State Legislatures will sometimes fail or refuse
to consult the common interest at the expense of their
local coveniency or prejudices. . . . Whenever the
State Legislatures had a favorite measure to carry,
they would take care so to mould their regulations as
to favor the candidates they wished to succeed.” 2
Records of the Federal Convention of 1787, at 240–
241.
During the subsequent fight for ratification, the provi-
sion remained a subject of debate. Antifederalists predicted
that Congress’s power under the Elections Clause would
allow Congress to make itself “omnipotent,” setting the
“time” of elections as never or the “place” in difficult to
reach corners of the State. Federalists responded that,
among other justifications, the revisionary power was
necessary to counter state legislatures set on undermining
fair representation, including through malapportionment.
M. Klarman, The Framers’ Coup: The Making of the United
States Constitution 340–342 (2016). The Federalists were,
for example, concerned that newly developing population
centers would be deprived of their proper electoral weight,
as some cities had been in Great Britain. See 6 The Doc-
umentary History of the Ratification of the Constitution:
Massachusetts 1278–1279 (J. Kaminski & G. Saladino
eds. 2000).
Congress has regularly exercised its Elections Clause
power, including to address partisan gerrymandering.
The Apportionment Act of 1842, which required single-
10 RUCHO v. COMMON CAUSE
Opinion of the Court
member districts for the first time, specified that those
districts be “composed of contiguous territory,” Act of June
25, 1842, ch. 47, 5 Stat. 491, in “an attempt to forbid the
practice of the gerrymander,” Griffith, supra, at 12. Later
statutes added requirements of compactness and equality
of population. Act of Jan. 16, 1901, ch. 93, §3, 31 Stat.
733; Act of Feb. 2, 1872, ch. 11, §2, 17 Stat. 28. (Only the
single member district requirement remains in place
today. 2 U.S. C. §2c.) See Vieth, 541 U.S., at 276 (plurality
opinion). Congress also used its Elections Clause power in
1870, enacting the first comprehensive federal statute
dealing with elections as a way to enforce the Fifteenth
Amendment. Force Act of 1870, ch. 114, 16 Stat. 140.
Starting in the 1950s, Congress enacted a series of laws to
protect the right to vote through measures such as the
suspension of literacy tests and the prohibition of English-
only elections. See, e.g., 52 U.S. C. §10101 et seq.
Appellants suggest that, through the Elections Clause,
the Framers set aside electoral issues such as the one
before us as questions that only Congress can resolve. See
Baker, 369 U.S., at 217. We do not agree. In two areas—
one-person, one-vote and racial gerrymandering—our
cases have held that there is a role for the courts with
respect to at least some issues that could arise from a
State’s drawing of congressional districts. See Wesberry v.
Sanders, 376 U.S. 1 (1964); Shaw v. Reno, 509 U.S. 630
(1993) (Shaw I ).
But the history is not irrelevant. The Framers were
aware of electoral districting problems and considered
what to do about them. They settled on a characteristic
approach, assigning the issue to the state legislatures,
expressly checked and balanced by the Federal Congress.
As Alexander Hamilton explained, “it will . . . not be de-
nied that a discretionary power over elections ought to
exist somewhere. It will, I presume, be as readily conceded
that there were only three ways in which this power could
Cite as: 588 U. S. ____ (2019) 11
Opinion of the Court
have been reasonably modified and disposed: that it must
either have been lodged wholly in the national legislature,
or wholly in the State legislatures, or primarily in the
latter, and ultimately in the former.” The Federalist No.
59, p. 362 (C. Rossiter ed. 1961). At no point was there a
suggestion that the federal courts had a role to play. Nor
was there any indication that the Framers had ever heard
of courts doing such a thing.
C
Courts have nevertheless been called upon to resolve a
variety of questions surrounding districting. Early on,
doubts were raised about the competence of the federal
courts to resolve those questions. See Wood v. Broom, 287
U.S. 1 (1932); Colegrove v. Green, 328 U.S. 549 (1946).
In the leading case of Baker v. Carr, voters in Tennessee
complained that the State’s districting plan for state
representatives “debase[d]” their votes, because the plan
was predicated on a 60-year-old census that no longer
reflected the distribution of population in the State. The
plaintiffs argued that votes of people in overpopulated
districts held less value than those of people in less-
populated districts, and that this inequality violated the
Equal Protection Clause of the Fourteenth Amendment.
The District Court dismissed the action on the ground that
the claim was not justiciable, relying on this Court’s prec-
edents, including Colegrove. Baker v. Carr, 179 F. Supp.
824, 825, 826 (MD Tenn. 1959). This Court reversed. It
identified various considerations relevant to determining
whether a claim is a nonjusticiable political question,
including whether there is “a lack of judicially discover-
able and manageable standards for resolving it.” 369 U.S.,
at 217. The Court concluded that the claim of population
inequality among districts did not fall into that category,
because such a claim could be decided under basic equal
protection principles. Id., at 226. In Wesberry v. Sanders,
12 RUCHO v. COMMON CAUSE
Opinion of the Court
the Court extended its ruling to malapportionment of
congressional districts, holding that Article I, §2, required
that “one man’s vote in a congressional election is to be
worth as much as another’s.” 376 U.S., at 8.
Another line of challenges to districting plans has fo-
cused on race. Laws that explicitly discriminate on the
basis of race, as well as those that are race neutral on
their face but are unexplainable on grounds other than
race, are of course presumptively invalid. The Court
applied those principles to electoral boundaries in Gomil-
lion v. Lightfoot, concluding that a challenge to an “un-
couth twenty-eight sided” municipal boundary line that
excluded black voters from city elections stated a constitu-
tional claim. 364 U.S. 339, 340 (1960). In Wright v.
Rockefeller, 376 U.S. 52 (1964), the Court extended the
reasoning of Gomillion to congressional districting. See
Shaw I, 509 U.S., at 645.
Partisan gerrymandering claims have proved far more
difficult to adjudicate. The basic reason is that, while it is
illegal for a jurisdiction to depart from the one-person,
one-vote rule, or to engage in racial discrimination in
districting, “a jurisdiction may engage in constitutional
political gerrymandering.” Hunt v. Cromartie, 526 U.S.
541, 551 (1999) (citing Bush v. Vera, 517 U.S. 952, 968
(1996); Shaw v. Hunt, 517 U.S. 899, 905 (1996) (Shaw II );
Miller v. Johnson, 515 U.S. 900, 916 (1995); Shaw I, 509
U.S., at 646). See also Gaffney v. Cummings, 412 U.S.
735, 753 (1973) (recognizing that “[p]olitics and political
considerations are inseparable from districting and
apportionment”).
To hold that legislators cannot take partisan interests
into account when drawing district lines would essentially
countermand the Framers’ decision to entrust districting
to political entities. The “central problem” is not deter-
mining whether a jurisdiction has engaged in partisan
gerrymandering. It is “determining when political gerry-
Cite as: 588 U. S. ____ (2019) 13
Opinion of the Court
mandering has gone too far.” Vieth, 541 U.S., at 296
(plurality opinion). See League of United Latin American
Citizens v. Perry, 548 U.S. 399, 420 (2006) (LULAC) (opin-
ion of Kennedy, J.) (difficulty is “providing a standard for
deciding how much partisan dominance is too much”).
We first considered a partisan gerrymandering claim in
Gaffney v. Cummings in 1973. There we rejected an equal
protection challenge to Connecticut’s redistricting plan,
which “aimed at a rough scheme of proportional represen-
tation of the two major political parties” by “wiggl[ing] and
joggl[ing] boundary lines” to create the appropriate num-
ber of safe seats for each party. 412 U.S., at 738, 752,
n. 18 (internal quotation marks omitted). In upholding
the State’s plan, we reasoned that districting “inevitably
has and is intended to have substantial political conse-
quences.” Id., at 753.
Thirteen years later, in Davis v. Bandemer, we ad-
dressed a claim that Indiana Republicans had cracked and
packed Democrats in violation of the Equal Protection
Clause. 478 U.S. 109, 116–117 (1986) (plurality opinion).
A majority of the Court agreed that the case was justicia-
ble, but the Court splintered over the proper standard to
apply. Four Justices would have required proof of “inten-
tional discrimination against an identifiable political
group and an actual discriminatory effect on that group.”
Id., at 127. Two Justices would have focused on “whether
the boundaries of the voting districts have been distorted
deliberately and arbitrarily to achieve illegitimate ends.”
Id., at 165 (Powell, J., concurring in part and dissenting in
part). Three Justices, meanwhile, would have held that
the Equal Protection Clause simply “does not supply
judicially manageable standards for resolving purely
political gerrymandering claims.” Id., at 147 (O’Connor,
J., concurring in judgment). At the end of the day, there
was “no ‘Court’ for a standard that properly should be
applied in determining whether a challenged redistricting
14 RUCHO v. COMMON CAUSE
Opinion of the Court
plan is an unconstitutional partisan political gerryman-
der.” Id., at 185, n. 25 (opinion of Powell, J.). In any
event, the Court held that the plaintiffs had failed to show
that the plan violated the Constitution.
Eighteen years later, in Vieth, the plaintiffs complained
that Pennsylvania’s legislature “ignored all traditional
redistricting criteria, including the preservation of local
government boundaries,” in order to benefit Republican
congressional candidates. 541 U.S., at 272–273 (plurality
opinion) (brackets omitted). Justice Scalia wrote for a
four-Justice plurality. He would have held that the plain-
tiffs’ claims were nonjusticiable because there was no
“judicially discernible and manageable standard” for
deciding them. Id., at 306. Justice Kennedy, concurring
in the judgment, noted “the lack of comprehensive and
neutral principles for drawing electoral boundaries [and]
the absence of rules to limit and confine judicial interven-
tion.” Id., at 306–307. He nonetheless left open the possi-
bility that “in another case a standard might emerge.” Id.,
at 312. Four Justices dissented.
In LULAC, the plaintiffs challenged a mid-decade redis-
tricting map approved by the Texas Legislature. Once
again a majority of the Court could not find a justiciable
standard for resolving the plaintiffs’ partisan gerryman-
dering claims. See 548 U.S., at 414 (noting that the
“disagreement over what substantive standard to apply”
that was evident in Bandemer “persists”).
As we summed up last Term in Gill, our “considerable
efforts in Gaffney, Bandemer, Vieth, and LULAC leave
unresolved whether . . . claims [of legal right] may be
brought in cases involving allegations of partisan gerry-
mandering.” 585 U. S., at ___ (slip op., at 13). Two
“threshold questions” remained: standing, which we ad-
dressed in Gill, and “whether [such] claims are justicia-
ble.” Ibid.
Cite as: 588 U. S. ____ (2019) 15
Opinion of the Court
III
A
In considering whether partisan gerrymandering claims
are justiciable, we are mindful of Justice Kennedy’s coun-
sel in Vieth: Any standard for resolving such claims must
be grounded in a “limited and precise rationale” and be
“clear, manageable, and politically neutral.” 541 U.S., at
306–308 (opinion concurring in judgment). An important
reason for those careful constraints is that, as a Justice
with extensive experience in state and local politics put it,
“[t]he opportunity to control the drawing of electoral
boundaries through the legislative process of apportion-
ment is a critical and traditional part of politics in the
United States.” Bandemer, 478 U.S., at 145 (opinion of
O’Connor, J.). See Gaffney, 412 U.S., at 749 (observing
that districting implicates “fundamental ‘choices about the
nature of representation’ ” (quoting Burns v. Richardson,
384 U.S. 73, 92 (1966))). An expansive standard requiring
“the correction of all election district lines drawn for parti-
san reasons would commit federal and state courts to
unprecedented intervention in the American political
process,” Vieth, 541 U.S., at 306 (opinion of Kennedy, J.).
As noted, the question is one of degree: How to
“provid[e] a standard for deciding how much partisan
dominance is too much.” LULAC, 548 U.S., at 420 (opin-
ion of Kennedy, J.). And it is vital in such circumstances
that the Court act only in accord with especially clear
standards: “With uncertain limits, intervening courts—
even when proceeding with best intentions—would risk
assuming political, not legal, responsibility for a process
that often produces ill will and distrust.” Vieth, 541 U.S.,
at 307 (opinion of Kennedy, J.). If federal courts are to
“inject [themselves] into the most heated partisan issues”
by adjudicating partisan gerrymandering claims,
Bandemer, 478 U.S., at 145 (opinion of O’Connor, J.), they
must be armed with a standard that can reliably differen-
16 RUCHO v. COMMON CAUSE
Opinion of the Court
tiate unconstitutional from “constitutional political gerry-
mandering.” Cromartie, 526 U.S., at 551.
B
Partisan gerrymandering claims rest on an instinct that
groups with a certain level of political support should
enjoy a commensurate level of political power and influ-
ence. Explicitly or implicitly, a districting map is alleged
to be unconstitutional because it makes it too difficult for
one party to translate statewide support into seats in the
legislature. But such a claim is based on a “norm that
does not exist” in our electoral system—“statewide elec-
tions for representatives along party lines.” Bandemer,
478 U.S., at 159 (opinion of O’Connor, J.).
Partisan gerrymandering claims invariably sound in a
desire for proportional representation. As Justice
O’Connor put it, such claims are based on “a conviction
that the greater the departure from proportionality, the
more suspect an apportionment plan becomes.” Ibid.
“Our cases, however, clearly foreclose any claim that the
Constitution requires proportional representation or that
legislatures in reapportioning must draw district lines to
come as near as possible to allocating seats to the contend-
ing parties in proportion to what their anticipated
statewide vote will be.” Id., at 130 (plurality opinion). See
Mobile v. Bolden, 446 U.S. 55, 75–76 (1980) (plurality
opinion) (“The Equal Protection Clause of the Fourteenth
Amendment does not require proportional representation
as an imperative of political organization.”).
The Founders certainly did not think proportional rep-
resentation was required. For more than 50 years after
ratification of the Constitution, many States elected their
congressional representatives through at-large or “general
ticket” elections. Such States typically sent single-party
delegations to Congress. See E. Engstrom, Partisan Gerry-
mandering and the Construction of American Democracy
Cite as: 588 U. S. ____ (2019) 17
Opinion of the Court
43–51 (2013). That meant that a party could garner nearly
half of the vote statewide and wind up without any seats
in the congressional delegation. The Whigs in Alabama
suffered that fate in 1840: “their party garnered 43 per-
cent of the statewide vote, yet did not receive a single
seat.” Id., at 48. When Congress required single-member
districts in the Apportionment Act of 1842, it was not
out of a general sense of fairness, but instead a
(mis)calculation by the Whigs that such a change would
improve their electoral prospects. Id., at 43–44.
Unable to claim that the Constitution requires propor-
tional representation outright, plaintiffs inevitably ask the
courts to make their own political judgment about how
much representation particular political parties deserve—
based on the votes of their supporters—and to rearrange
the challenged districts to achieve that end. But federal
courts are not equipped to apportion political power as a
matter of fairness, nor is there any basis for concluding
that they were authorized to do so. As Justice Scalia put
it for the plurality in Vieth:
“ ‘Fairness’ does not seem to us a judicially manage-
able standard. . . . Some criterion more solid and more
demonstrably met than that seems to us necessary to
enable the state legislatures to discern the limits of
their districting discretion, to meaningfully constrain
the discretion of the courts, and to win public ac-
ceptance for the courts’ intrusion into a process that is
the very foundation of democratic decisionmaking.”
541 U.S., at 291.
The initial difficulty in settling on a “clear, manageable
and politically neutral” test for fairness is that it is not
even clear what fairness looks like in this context. There
is a large measure of “unfairness” in any winner-take-all
system. Fairness may mean a greater number of competi-
tive districts. Such a claim seeks to undo packing and
18 RUCHO v. COMMON CAUSE
Opinion of the Court
cracking so that supporters of the disadvantaged party
have a better shot at electing their preferred candidates.
But making as many districts as possible more competi-
tive could be a recipe for disaster for the disadvantaged
party. As Justice White has pointed out, “[i]f all or most of
the districts are competitive . . . even a narrow statewide
preference for either party would produce an overwhelm-
ing majority for the winning party in the state legisla-
ture.” Bandemer, 478 U.S., at 130 (plurality opinion).
On the other hand, perhaps the ultimate objective of a
“fairer” share of seats in the congressional delegation is
most readily achieved by yielding to the gravitational pull
of proportionality and engaging in cracking and packing,
to ensure each party its “appropriate” share of “safe” seats.
See id., at 130–131 (“To draw district lines to maximize
the representation of each major party would require
creating as many safe seats for each party as the demo-
graphic and predicted political characteristics of the State
would permit.”); Gaffney, 412 U.S., at 735–738. Such an
approach, however, comes at the expense of competitive
districts and of individuals in districts allocated to the
opposing party.
Or perhaps fairness should be measured by adherence
to “traditional” districting criteria, such as maintaining
political subdivisions, keeping communities of interest
together, and protecting incumbents. See Brief for Bipar-
tisan Group of Current and Former Members of the House
of Representatives as Amici Curiae; Brief for Professor
Wesley Pegden et al. as Amici Curiae in No. 18–422. But
protecting incumbents, for example, enshrines a particular
partisan distribution. And the “natural political geogra-
phy” of a State—such as the fact that urban electoral
districts are often dominated by one political party—can
itself lead to inherently packed districts. As Justice Ken-
nedy has explained, traditional criteria such as compact-
ness and contiguity “cannot promise political neutrality
Cite as: 588 U. S. ____ (2019) 19
Opinion of the Court
when used as the basis for relief. Instead, it seems, a
decision under these standards would unavoidably have
significant political effect, whether intended or not.”
Vieth, 541 U.S., at 308–309 (opinion concurring in judg-
ment). See id., at 298 (plurality opinion) (“[P]acking and
cracking, whether intentional or no, are quite consistent
with adherence to compactness and respect for political
subdivision lines”).
Deciding among just these different visions of fairness
(you can imagine many others) poses basic questions that
are political, not legal. There are no legal standards dis-
cernible in the Constitution for making such judgments,
let alone limited and precise standards that are clear,
manageable, and politically neutral. Any judicial decision
on what is “fair” in this context would be an “unmoored
determination” of the sort characteristic of a political
question beyond the competence of the federal courts.
Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012).
And it is only after determining how to define fairness
that you can even begin to answer the determinative
question: “How much is too much?” At what point does
permissible partisanship become unconstitutional? If
compliance with traditional districting criteria is the
fairness touchstone, for example, how much deviation
from those criteria is constitutionally acceptable and how
should mapdrawers prioritize competing criteria? Should
a court “reverse gerrymander” other parts of a State to
counteract “natural” gerrymandering caused, for example,
by the urban concentration of one party? If a districting
plan protected half of the incumbents but redistricted the
rest into head to head races, would that be constitutional?
A court would have to rank the relative importance of
those traditional criteria and weigh how much deviation
from each to allow.
If a court instead focused on the respective number of
seats in the legislature, it would have to decide the ideal
20 RUCHO v. COMMON CAUSE
Opinion of the Court
number of seats for each party and determine at what
point deviation from that balance went too far. If a 5–3
allocation corresponds most closely to statewide vote
totals, is a 6–2 allocation permissible, given that legisla-
tures have the authority to engage in a certain degree of
partisan gerrymandering? Which seats should be packed
and which cracked? Or if the goal is as many competitive
districts as possible, how close does the split need to be for
the district to be considered competitive? Presumably not
all districts could qualify, so how to choose? Even assum-
ing the court knew which version of fairness to be looking
for, there are no discernible and manageable standards for
deciding whether there has been a violation. The ques-
tions are “unguided and ill suited to the development of
judicial standards,” Vieth, 541 U.S., at 296 (plurality
opinion), and “results from one gerrymandering case to the
next would likely be disparate and inconsistent,” id., at
308 (opinion of Kennedy, J.).
Appellees contend that if we can adjudicate one-person,
one-vote claims, we can also assess partisan gerrymander-
ing claims. But the one-person, one-vote rule is relatively
easy to administer as a matter of math. The same cannot
be said of partisan gerrymandering claims, because the
Constitution supplies no objective measure for assessing
whether a districting map treats a political party fairly. It
hardly follows from the principle that each person must
have an equal say in the election of representatives that a
person is entitled to have his political party achieve repre-
sentation in some way commensurate to its share of
statewide support.
More fundamentally, “vote dilution” in the one-person,
one-vote cases refers to the idea that each vote must carry
equal weight. In other words, each representative must be
accountable to (approximately) the same number of con-
stituents. That requirement does not extend to political
parties. It does not mean that each party must be influen-
Cite as: 588 U. S. ____ (2019) 21
Opinion of the Court
tial in proportion to its number of supporters. As we
stated unanimously in Gill, “this Court is not responsible
for vindicating generalized partisan preferences. The
Court’s constitutionally prescribed role is to vindicate the
individual rights of the people appearing before it.” 585
U. S., at ___ (slip op., at 21). See also Bandemer, 478
U.S., at 150 (opinion of O’Connor, J.) (“[T]he Court has
not accepted the argument that an ‘asserted entitlement
to group representation’ . . . can be traced to the one per-
son, one vote principle.” (quoting Bolden, 446 U.S., at
77)).*
Nor do our racial gerrymandering cases provide an
appropriate standard for assessing partisan gerrymander-
ing. “[N]othing in our case law compels the conclusion
that racial and political gerrymanders are subject to pre-
cisely the same constitutional scrutiny. In fact, our coun-
try’s long and persistent history of racial discrimination in
voting—as well as our Fourteenth Amendment jurispru-
dence, which always has reserved the strictest scrutiny for
discrimination on the basis of race—would seem to compel
the opposite conclusion.” Shaw I, 509 U.S., at 650 (cita-
tion omitted). Unlike partisan gerrymandering claims, a
racial gerrymandering claim does not ask for a fair share
of political power and influence, with all the justiciability
conundrums that entails. It asks instead for the elimina-
tion of a racial classification. A partisan gerrymandering
claim cannot ask for the elimination of partisanship.
——————
* The dissent’s observation that the Framers viewed political parties
“with deep suspicion, as fomenters of factionalism and symptoms of
disease in the body politic” post, at 9, n. 1 (opinion of KAGAN, J.) (inter-
nal quotation marks and alteration omitted), is exactly right. Its
inference from that fact is exactly wrong. The Framers would have
been amazed at a constitutional theory that guarantees a certain
degree of representation to political parties.
22 RUCHO v. COMMON CAUSE
Opinion of the Court
IV
Appellees and the dissent propose a number of “tests”
for evaluating partisan gerrymandering claims, but none
meets the need for a limited and precise standard that is
judicially discernible and manageable. And none provides
a solid grounding for judges to take the extraordinary step
of reallocating power and influence between political
parties.
A
The Common Cause District Court concluded that all
but one of the districts in North Carolina’s 2016 Plan
violated the Equal Protection Clause by intentionally
diluting the voting strength of Democrats. 318 F. Supp.
3d, at 923. In reaching that result the court first required
the plaintiffs to prove “that a legislative mapdrawer’s
predominant purpose in drawing the lines of a particular
district was to ‘subordinate adherents of one political
party and entrench a rival party in power.’ ” Id., at 865
(quoting Arizona State Legislature v. Arizona Independent
Redistricting Comm’n, 576 U. S. ___, ___ (2015) (slip op.,
at 1)). The District Court next required a showing “that
the dilution of the votes of supporters of a disfavored party
in a particular district—by virtue of cracking or packing—
is likely to persist in subsequent elections such that an
elected representative from the favored party in the dis-
trict will not feel a need to be responsive to constituents
who support the disfavored party.” 318 F. Supp. 3d, at
867. Finally, after a prima facie showing of partisan vote
dilution, the District Court shifted the burden to the de-
fendants to prove that the discriminatory effects are “at-
tributable to a legitimate state interest or other neutral
explanation.” Id., at 868.
The District Court’s “predominant intent” prong is
borrowed from the racial gerrymandering context. In
racial gerrymandering cases, we rely on a “predominant
Cite as: 588 U. S. ____ (2019) 23
Opinion of the Court
intent” inquiry to determine whether race was, in fact, the
reason particular district boundaries were drawn the way
they were. If district lines were drawn for the purpose of
separating racial groups, then they are subject to strict
scrutiny because “race-based decisionmaking is inherently
suspect.” Miller, 515 U.S., at 915. See Bush, 517 U.S., at
959 (principal opinion). But determining that lines were
drawn on the basis of partisanship does not indicate that
the districting was improper. A permissible intent—
securing partisan advantage—does not become constitu-
tionally impermissible, like racial discrimination, when
that permissible intent “predominates.”
The District Court tried to limit the reach of its test by
requiring plaintiffs to show, in addition to predominant
partisan intent, that vote dilution “is likely to persist” to
such a degree that the elected representative will feel free
to ignore the concerns of the supporters of the minority
party. 318 F. Supp. 3d, at 867. But “[t]o allow district
courts to strike down apportionment plans on the basis of
their prognostications as to the outcome of future elections
. . . invites ‘findings’ on matters as to which neither judges
nor anyone else can have any confidence.” Bandemer, 478
U.S., at 160 (opinion of O’Connor, J.). See LULAC, 548
U.S., at 420 (opinion of Kennedy, J.) (“[W]e are wary of
adopting a constitutional standard that invalidates a map
based on unfair results that would occur in a hypothetical
state of affairs.”). And the test adopted by the Common
Cause court requires a far more nuanced prediction than
simply who would prevail in future political contests.
Judges must forecast with unspecified certainty whether a
prospective winner will have a margin of victory sufficient
to permit him to ignore the supporters of his defeated
opponent (whoever that may turn out to be). Judges not
only have to pick the winner—they have to beat the point
spread.
The appellees assure us that “the persistence of a
24 RUCHO v. COMMON CAUSE
Opinion of the Court
party’s advantage may be shown through sensitivity test-
ing: probing how a plan would perform under other plau-
sible electoral conditions.” Brief for Appellees League of
Women Voters of North Carolina et al. in No. 18–422,
p. 55. See also 318 F. Supp. 3d, at 885. Experience proves
that accurately predicting electoral outcomes is not so
simple, either because the plans are based on flawed
assumptions about voter preferences and behavior or
because demographics and priorities change over time. In
our two leading partisan gerrymandering cases them-
selves, the predictions of durability proved to be dramati-
cally wrong. In 1981, Republicans controlled both houses
of the Indiana Legislature as well as the governorship.
Democrats challenged the state legislature districting map
enacted by the Republicans. This Court in Bandemer
rejected that challenge, and just months later the Demo-
crats increased their share of House seats in the 1986
elections. Two years later the House was split 50–50
between Democrats and Republicans, and the Democrats
took control of the chamber in 1990. Democrats also
challenged the Pennsylvania congressional districting
plan at issue in Vieth. Two years after that challenge
failed, they gained four seats in the delegation, going from
a 12–7 minority to an 11–8 majority. At the next election,
they flipped another Republican seat.
Even the most sophisticated districting maps cannot
reliably account for some of the reasons voters prefer one
candidate over another, or why their preferences may
change. Voters elect individual candidates in individual
districts, and their selections depend on the issues that
matter to them, the quality of the candidates, the tone of
the candidates’ campaigns, the performance of an incum-
bent, national events or local issues that drive voter turn-
out, and other considerations. Many voters split their
tickets. Others never register with a political party, and
vote for candidates from both major parties at different
Cite as: 588 U. S. ____ (2019) 25
Opinion of the Court
points during their lifetimes. For all of those reasons,
asking judges to predict how a particular districting map
will perform in future elections risks basing constitutional
holdings on unstable ground outside judicial expertise.
It is hard to see what the District Court’s third prong—
providing the defendant an opportunity to show that the
discriminatory effects were due to a “legitimate redistrict-
ing objective”—adds to the inquiry. 318 F. Supp. 3d, at
861. The first prong already requires the plaintiff to prove
that partisan advantage predominates. Asking whether a
legitimate purpose other than partisanship was the moti-
vation for a particular districting map just restates the
question.
B
The District Courts also found partisan gerrymandering
claims justiciable under the First Amendment, coalescing
around a basic three-part test: proof of intent to burden
individuals based on their voting history or party affilia-
tion; an actual burden on political speech or associational
rights; and a causal link between the invidious intent and
actual burden. See Common Cause, 318 F. Supp. 3d, at
929; Benisek, 348 F. Supp. 3d, at 522. Both District
Courts concluded that the districting plans at issue violated
the plaintiffs’ First Amendment right to association. The
District Court in North Carolina relied on testimony that,
after the 2016 Plan was put in place, the plaintiffs faced
“difficulty raising money, attracting candidates, and mobi-
lizing voters to support the political causes and issues
such Plaintiffs sought to advance.” 318 F. Supp. 3d, at
932. Similarly, the District Court in Maryland examined
testimony that “revealed a lack of enthusiasm, indiffer-
ence to voting, a sense of disenfranchisement, a sense of
disconnection, and confusion,” and concluded that Repub-
licans in the Sixth District “were burdened in fundraising,
attracting volunteers, campaigning, and generating inter-
26 RUCHO v. COMMON CAUSE
Opinion of the Court
est in voting.” 348 F. Supp. 3d, at 523–524.
To begin, there are no restrictions on speech, associa-
tion, or any other First Amendment activities in the dis-
tricting plans at issue. The plaintiffs are free to engage in
those activities no matter what the effect of a plan may be
on their district.
The plaintiffs’ argument is that partisanship in district-
ing should be regarded as simple discrimination against
supporters of the opposing party on the basis of political
viewpoint. Under that theory, any level of partisanship in
districting would constitute an infringement of their First
Amendment rights. But as the Court has explained, “[i]t
would be idle . . . to contend that any political considera-
tion taken into account in fashioning a reapportionment
plan is sufficient to invalidate it.” Gaffney, 412 U.S., at
752. The First Amendment test simply describes the act
of districting for partisan advantage. It provides no
standard for determining when partisan activity goes too
far.
As for actual burden, the slight anecdotal evidence
found sufficient by the District Courts in these cases
shows that this too is not a serious standard for separating
constitutional from unconstitutional partisan gerryman-
dering. The District Courts relied on testimony about
difficulty drumming up volunteers and enthusiasm. How
much of a decline in voter engagement is enough to consti-
tute a First Amendment burden? How many door knocks
must go unanswered? How many petitions unsigned?
How many calls for volunteers unheeded? The Common
Cause District Court held that a partisan gerrymander
places an unconstitutional burden on speech if it has more
than a “de minimis” “chilling effect or adverse impact” on
any First Amendment activity. 318 F. Supp. 3d, at 930.
The court went on to rule that there would be an adverse
effect “even if the speech of [the plaintiffs] was not in fact
chilled”; it was enough that the districting plan “makes it
Cite as: 588 U. S. ____ (2019) 27
Opinion of the Court
easier for supporters of Republican candidates to translate
their votes into seats,” thereby “enhanc[ing] the[ir] rela-
tive voice.” Id., at 933 (internal quotation marks omitted).
These cases involve blatant examples of partisanship
driving districting decisions. But the First Amendment
analysis below offers no “clear” and “manageable” way of
distinguishing permissible from impermissible partisan
motivation. The Common Cause court embraced that
conclusion, observing that “a judicially manageable
framework for evaluating partisan gerrymandering claims
need not distinguish an ‘acceptable’ level of partisan ger-
rymandering from ‘excessive’ partisan gerrymandering”
because “the Constitution does not authorize state redis-
tricting bodies to engage in such partisan gerrymander-
ing.” Id., at 851. The decisions below prove the prediction
of the Vieth plurality that “a First Amendment claim, if it
were sustained, would render unlawful all consideration of
political affiliation in districting,” 541 U.S., at 294, con-
trary to our established precedent.
C
The dissent proposes using a State’s own districting
criteria as a neutral baseline from which to measure how
extreme a partisan gerrymander is. The dissent would
have us line up all the possible maps drawn using those
criteria according to the partisan distribution they would
produce. Distance from the “median” map would indicate
whether a particular districting plan harms supporters of
one party to an unconstitutional extent. Post, at 18–19, 25
(opinion of KAGAN, J.).
As an initial matter, it does not make sense to use crite-
ria that will vary from State to State and year to year as
the baseline for determining whether a gerrymander
violates the Federal Constitution. The degree of partisan
advantage that the Constitution tolerates should not turn
on criteria offered by the gerrymanderers themselves. It
28 RUCHO v. COMMON CAUSE
Opinion of the Court
is easy to imagine how different criteria could move the
median map toward different partisan distributions. As a
result, the same map could be constitutional or not de-
pending solely on what the mapmakers said they set out to
do. That possibility illustrates that the dissent’s proposed
constitutional test is indeterminate and arbitrary.
Even if we were to accept the dissent’s proposed base-
line, it would return us to “the original unanswerable
question (How much political motivation and effect is too
much?).” Vieth, 541 U.S., at 296–297 (plurality opinion).
Would twenty percent away from the median map be
okay? Forty percent? Sixty percent? Why or why not?
(We appreciate that the dissent finds all the unanswerable
questions annoying, see post, at 22, but it seems a useful
way to make the point.) The dissent’s answer says it all:
“This much is too much.” Post, at 25–26. That is not even
trying to articulate a standard or rule.
The dissent argues that there are other instances in law
where matters of degree are left to the courts. See post, at
27. True enough. But those instances typically involve
constitutional or statutory provisions or common law
confining and guiding the exercise of judicial discretion.
For example, the dissent cites the need to determine “sub-
stantial anticompetitive effect[s]” in antitrust law. Post,
at 27 (citing Ohio v. American Express Co., 585 U. S. ___
(2018)). That language, however, grew out of the Sherman
Act, understood from the beginning to have its “origin in
the common law” and to be “familiar in the law of this
country prior to and at the time of the adoption of the
[A]ct.” Standard Oil Co. of N. J. v. United States, 221
U.S. 1, 51 (1911). Judges began with a significant body of
law about what constituted a legal violation. In other
cases, the pertinent statutory terms draw meaning from
related provisions or statutory context. Here, on the other
hand, the Constitution provides no basis whatever to
guide the exercise of judicial discretion. Common experi-
Cite as: 588 U. S. ____ (2019) 29
Opinion of the Court
ence gives content to terms such as “substantial risk” or
“substantial harm,” but the same cannot be said of sub-
stantial deviation from a median map. There is no way to
tell whether the prohibited deviation from that map
should kick in at 25 percent or 75 percent or some other
point. The only provision in the Constitution that specifi-
cally addresses the matter assigns it to the political
branches. See Art. I, §4, cl. 1.
D
The North Carolina District Court further concluded
that the 2016 Plan violated the Elections Clause and
Article I, §2. We are unconvinced by that novel approach.
Article I, §2, provides that “[t]he House of Representa-
tives shall be composed of Members chosen every second
Year by the People of the several States.” The Elections
Clause provides that “[t]he Times, Places and Manner of
holding Elections for Senators and Representatives, shall
be prescribed in each State by the Legislature thereof; but
the Congress may at any time by Law make or alter such
Regulations, except as to the Places of chusing Senators.”
Art. I, §4, cl. 1.
The District Court concluded that the 2016 Plan exceeded
the North Carolina General Assembly’s Elections Clause
authority because, among other reasons, “the Elections
Clause did not empower State legislatures to disfavor the
interests of supporters of a particular candidate or party
in drawing congressional districts.” 318 F. Supp. 3d, at
937. The court further held that partisan gerrymandering
infringes the right of “the People” to select their repre-
sentatives. Id., at 938–940. Before the District Court’s
decision, no court had reached a similar conclusion. In
fact, the plurality in Vieth concluded—without objection
from any other Justice—that neither §2 nor §4 of Article I
“provides a judicially enforceable limit on the political
considerations that the States and Congress may take into
30 RUCHO v. COMMON CAUSE
Opinion of the Court
account when districting.” 541 U.S., at 305.
The District Court nevertheless asserted that partisan
gerrymanders violate “the core principle of [our] republi-
can government” preserved in Art. I, §2, “namely, that the
voters should choose their representatives, not the other
way around.” 318 F. Supp. 3d, at 940 (quoting Arizona
State Legislature, 576 U. S., at ___ (slip op., at 35); inter-
nal quotation marks omitted; alteration in original). That
seems like an objection more properly grounded in the
Guarantee Clause of Article IV, §4, which “guarantee[s] to
every State in [the] Union a Republican Form of Govern-
ment.” This Court has several times concluded, however,
that the Guarantee Clause does not provide the basis for a
justiciable claim. See, e.g., Pacific States Telephone &
Telegraph Co. v. Oregon, 223 U.S. 118 (1912).
V
Excessive partisanship in districting leads to results
that reasonably seem unjust. But the fact that such ger-
rymandering is “incompatible with democratic principles,”
Arizona State Legislature, 576 U. S., at ___ (slip op., at 1),
does not mean that the solution lies with the federal judi-
ciary. We conclude that partisan gerrymandering claims
present political questions beyond the reach of the federal
courts. Federal judges have no license to reallocate politi-
cal power between the two major political parties, with no
plausible grant of authority in the Constitution, and no
legal standards to limit and direct their decisions.
“[J]udicial action must be governed by standard, by rule,”
and must be “principled, rational, and based upon rea-
soned distinctions” found in the Constitution or laws.
Vieth, 541 U.S., at 278, 279 (plurality opinion). Judicial
review of partisan gerrymandering does not meet those
basic requirements.
Today the dissent essentially embraces the argument
that the Court unanimously rejected in Gill: “this Court
Cite as: 588 U. S. ____ (2019) 31
Opinion of the Court
can address the problem of partisan gerrymandering
because it must.” 585 U. S., at ___ (slip op., at 12). That is
not the test of our authority under the Constitution; that
document instead “confines the federal courts to a properly
judicial role.” Town of Chester v. Laroe Estates, Inc., 581
U. S. ___, ___ (2017) (slip op., at 4).
What the appellees and dissent seek is an unprecedented
expansion of judicial power. We have never struck down a
partisan gerrymander as unconstitutional—despite vari-
ous requests over the past 45 years. The expansion of
judicial authority would not be into just any area of con-
troversy, but into one of the most intensely partisan as-
pects of American political life. That intervention would
be unlimited in scope and duration—it would recur over
and over again around the country with each new round of
districting, for state as well as federal representatives.
Consideration of the impact of today’s ruling on democratic
principles cannot ignore the effect of the unelected and
politically unaccountable branch of the Federal Govern-
ment assuming such an extraordinary and unprecedented
role. See post, at 32–33.
Our conclusion does not condone excessive partisan
gerrymandering. Nor does our conclusion condemn com-
plaints about districting to echo into a void. The States,
for example, are actively addressing the issue on a number
of fronts. In 2015, the Supreme Court of Florida struck
down that State’s congressional districting plan as a viola-
tion of the Fair Districts Amendment to the Florida Con-
stitution. League of Women Voters of Florida v. Detzner,
172 So. 3d 363 (2015). The dissent wonders why we can’t
do the same. See post, at 31. The answer is that there is
no “Fair Districts Amendment” to the Federal Constitu-
tion. Provisions in state statutes and state constitutions
can provide standards and guidance for state courts to
apply. (We do not understand how the dissent can main-
tain that a provision saying that no districting plan “shall
32 RUCHO v. COMMON CAUSE
Opinion of the Court
be drawn with the intent to favor or disfavor a political
party” provides little guidance on the question. See post,
at 31, n. 6.) Indeed, numerous other States are restricting
partisan considerations in districting through legislation.
One way they are doing so is by placing power to draw
electoral districts in the hands of independent commis-
sions. For example, in November 2018, voters in Colorado
and Michigan approved constitutional amendments creat-
ing multimember commissions that will be responsible in
whole or in part for creating and approving district maps
for congressional and state legislative districts. See Colo.
Const., Art. V, §§44, 46; Mich. Const., Art. IV, §6. Mis-
souri is trying a different tack. Voters there overwhelm-
ingly approved the creation of a new position—state de-
mographer—to draw state legislative district lines. Mo.
Const., Art. III, §3.
Other States have mandated at least some of the tradi-
tional districting criteria for their mapmakers. Some have
outright prohibited partisan favoritism in redistricting.
See Fla. Const., Art. III, §20(a) (“No apportionment plan
or individual district shall be drawn with the intent to
favor or disfavor a political party or an incumbent.”); Mo.
Const., Art. III, §3 (“Districts shall be designed in a man-
ner that achieves both partisan fairness and, secondarily,
competitiveness. ‘Partisan fairness’ means that parties
shall be able to translate their popular support into legis-
lative representation with approximately equal efficiency.”);
Iowa Code §42.4(5) (2016) (“No district shall be drawn for
the purpose of favoring a political party, incumbent legis-
lator or member of Congress, or other person or group.”);
Del. Code Ann., Tit. xxix, §804 (2017) (providing that in
determining district boundaries for the state legislature,
no district shall “be created so as to unduly favor any
person or political party”).
As noted, the Framers gave Congress the power to do
something about partisan gerrymandering in the Elections
Cite as: 588 U. S. ____ (2019) 33
Opinion of the Court
Clause. The first bill introduced in the 116th Congress
would require States to create 15-member independent
commissions to draw congressional districts and would
establish certain redistricting criteria, including protec-
tion for communities of interest, and ban partisan gerry-
mandering. H. R. 1, 116th Cong., 1st Sess., §§2401, 2411
(2019).
Dozens of other bills have been introduced to limit
reliance on political considerations in redistricting. In
2010, H. R. 6250 would have required States to follow
standards of compactness, contiguity, and respect for
political subdivisions in redistricting. It also would have
prohibited the establishment of congressional districts
“with the major purpose of diluting the voting strength of
any person, or group, including any political party,” except
when necessary to comply with the Voting Rights Act of
1965. H. R. 6250, 111th Cong., 2d Sess., §2 (referred to
committee).
Another example is the Fairness and Independence in
Redistricting Act, which was introduced in 2005 and has
been reintroduced in every Congress since. That bill
would require every State to establish an independent
commission to adopt redistricting plans. The bill also set
forth criteria for the independent commissions to use, such
as compactness, contiguity, and population equality. It
would prohibit consideration of voting history, political
party affiliation, or incumbent Representative’s residence.
H. R. 2642, 109th Cong., 1st Sess., §4 (referred to
subcommittee).
We express no view on any of these pending proposals.
We simply note that the avenue for reform established by
the Framers, and used by Congress in the past, remains
open.
* * *
No one can accuse this Court of having a crabbed view of
34 RUCHO v. COMMON CAUSE
Opinion of the Court
the reach of its competence. But we have no commission
to allocate political power and influence in the absence of a
constitutional directive or legal standards to guide us in
the exercise of such authority. “It is emphatically the
province and duty of the judicial department to say what
the law is.” Marbury v. Madison, 1 Cranch, at 177. In
this rare circumstance, that means our duty is to say “this
is not law.”
The judgments of the United States District Court for
the Middle District of North Carolina and the United
States District Court for the District of Maryland are
vacated, and the cases are remanded with instructions to
dismiss for lack of jurisdiction.
It is so ordered.
Cite as: 588 U. S. ____ (2019) 1
KAGAN, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 18–422, 18–726
_________________
ROBERT A. RUCHO, ET AL., APPELLANTS
18–422 v.
COMMON CAUSE, ET AL.; AND
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF NORTH CAROLINA
LINDA H. LAMONE, ET AL., APPELLANTS
18–726 v.
O. JOHN BENISEK, ET AL.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF MARYLAND
[June 27, 2019]
JUSTICE KAGAN, with whom JUSTICE GINSBURG,
JUSTICE BREYER, and JUSTICE SOTOMAYOR join,
dissenting.
For the first time ever, this Court refuses to remedy a
constitutional violation because it thinks the task beyond
judicial capabilities.
And not just any constitutional violation. The partisan
gerrymanders in these cases deprived citizens of the most
fundamental of their constitutional rights: the rights to
participate equally in the political process, to join with
others to advance political beliefs, and to choose their
political representatives. In so doing, the partisan gerry-
manders here debased and dishonored our democracy,
turning upside-down the core American idea that all
governmental power derives from the people. These ger-
rymanders enabled politicians to entrench themselves in
office as against voters’ preferences. They promoted parti-
2 RUCHO v. COMMON CAUSE
KAGAN, J., dissenting
sanship above respect for the popular will. They encour-
aged a politics of polarization and dysfunction. If left
unchecked, gerrymanders like the ones here may irrepa-
rably damage our system of government.
And checking them is not beyond the courts. The major-
ity’s abdication comes just when courts across the country,
including those below, have coalesced around manageable
judicial standards to resolve partisan gerrymandering
claims. Those standards satisfy the majority’s own
benchmarks. They do not require—indeed, they do not
permit—courts to rely on their own ideas of electoral
fairness, whether proportional representation or any
other. And they limit courts to correcting only egregious
gerrymanders, so judges do not become omnipresent play-
ers in the political process. But yes, the standards used
here do allow—as well they should—judicial intervention
in the worst-of-the-worst cases of democratic subversion,
causing blatant constitutional harms. In other words,
they allow courts to undo partisan gerrymanders of the
kind we face today from North Carolina and Maryland. In
giving such gerrymanders a pass from judicial review, the
majority goes tragically wrong.
I
Maybe the majority errs in these cases because it pays
so little attention to the constitutional harms at their core.
After dutifully reciting each case’s facts, the majority
leaves them forever behind, instead immersing itself in
everything that could conceivably go amiss if courts be-
came involved. So it is necessary to fill in the gaps. To
recount exactly what politicians in North Carolina and
Maryland did to entrench their parties in political office,
whatever the electorate might think. And to elaborate on
the constitutional injury those politicians wreaked, to our
democratic system and to individuals’ rights. All that will
help in considering whether courts confronting partisan
Cite as: 588 U. S. ____ (2019) 3
KAGAN, J., dissenting
gerrymandering claims are really so hamstrung—so un-
able to carry out their constitutional duties—as the major-
ity thinks.
A
The plaintiffs here challenge two congressional district-
ing plans—one adopted by Republicans in North Carolina
and the other by Democrats in Maryland—as unconstitu-
tional partisan gerrymanders. As I relate what happened
in those two States, ask yourself: Is this how American
democracy is supposed to work?
Start with North Carolina. After the 2010 census, the
North Carolina General Assembly, with Republican major-
ities in both its House and its Senate, enacted a new con-
gressional districting plan. That plan governed the two
next national elections. In 2012, Republican candidates
won 9 of the State’s 13 seats in the U. S. House of Repre-
sentatives, although they received only 49% of the
statewide vote. In 2014, Republican candidates increased
their total to 10 of the 13 seats, this time based on 55% of
the vote. Soon afterward, a District Court struck down
two districts in the plan as unconstitutional racial gerry-
manders. See Harris v. McCrory, 159 F. Supp. 3d 600
(MDNC 2016), aff ’d sub nom. Cooper v. Harris, 581 U. S.
___ (2017). The General Assembly, with both chambers
still controlled by Republicans, went back to the drawing
board to craft the needed remedial state map. And here is
how the process unfolded:
 The Republican co-chairs of the Assembly’s redis-
tricting committee, Rep. David Lewis and Sen.
Robert Rucho, instructed Dr. Thomas Hofeller, a
Republican districting specialist, to create a new
map that would maintain the 10–3 composition of
the State’s congressional delegation come what
might. Using sophisticated technological tools and
4 RUCHO v. COMMON CAUSE
KAGAN, J., dissenting
precinct-level election results selected to predict
voting behavior, Hofeller drew district lines to min-
imize Democrats’ voting strength and ensure the
election of 10 Republican Congressmen. See Com-
mon Cause v. Rucho, 318 F. Supp. 3d 777, 805–806
(MDNC 2018).
 Lewis then presented for the redistricting commit-
tee’s (retroactive) approval a list of the criteria Ho-
feller had employed—including one labeled “Parti-
san Advantage.” That criterion, endorsed by a
party-line vote, stated that the committee would
make all “reasonable efforts to construct districts”
to “maintain the current [10–3] partisan makeup”
of the State’s congressional delegation. Id., at 807.
 Lewis explained the Partisan Advantage criterion to
legislators as follows: We are “draw[ing] the maps
to give a partisan advantage to 10 Republicans and
3 Democrats because [I] d[o] not believe it[’s] possi-
ble to draw a map with 11 Republicans and 2 Dem-
ocrats.” Id., at 808 (internal quotation marks
omitted).
 The committee and the General Assembly later en-
acted, again on a party-line vote, the map Hofeller
had drawn. See id., at 809.
 Lewis announced: “I think electing Republicans is
better than electing Democrats. So I drew this map
to help foster what I think is better for the coun-
try.” Ibid. (internal quotation marks omitted).
You might think that judgment best left to the American
people. But give Lewis credit for this much: The map has
worked just as he planned and predicted. In 2016, Repub-
Cite as: 588 U. S. ____ (2019) 5
KAGAN, J., dissenting
lican congressional candidates won 10 of North Carolina’s
13 seats, with 53% of the statewide vote. Two years later,
Republican candidates won 9 of 12 seats though they
received only 50% of the vote. (The 13th seat has not yet
been filled because fraud tainted the initial election.)
Events in Maryland make for a similarly grisly tale.
For 50 years, Maryland’s 8-person congressional delega-
tion typically consisted of 2 or 3 Republicans and 5 or 6
Democrats. After the 2000 districting, for example, the
First and Sixth Districts reliably elected Republicans, and
the other districts as reliably elected Democrats. See R.
Cohen & J. Barnes, Almanac of American Politics 2016, p.
836 (2015). But in the 2010 districting cycle, the State’s
Democratic leaders, who controlled the governorship and
both houses of the General Assembly, decided to press
their advantage.
 Governor Martin O’Malley, who oversaw the pro-
cess, decided (in his own later words) “to create a
map that was more favorable for Democrats over
the next ten years.” Because flipping the First Dis-
trict was geographically next-to-impossible, “a deci-
sion was made to go for the Sixth.” Benisek v. La-
mone, 348 F. Supp. 3d 493, 502 (Md. 2018) (quoting
O’Malley; emphasis deleted).
 O’Malley appointed an advisory committee as the
public face of his effort, while asking Congressman
Steny Hoyer, a self-described “serial gerryman-
derer,” to hire and direct a mapmaker. Id., at 502.
Hoyer retained Eric Hawkins, an analyst at a polit-
ical consulting firm providing services to Demo-
crats. See id., at 502–503.
 Hawkins received only two instructions: to ensure
that the new map produced 7 reliable Democratic
6 RUCHO v. COMMON CAUSE
KAGAN, J., dissenting
seats, and to protect all Democratic incumbents.
See id., at 503.
 Using similar technologies and election data as Ho-
feller, Hawkins produced a map to those specifica-
tions. Although new census figures required re-
moving only 10,000 residents from the Sixth
District, Hawkins proposed a large-scale population
transfer. The map moved about 360,000 voters out
of the district and another 350,000 in. That swap
decreased the number of registered Republicans in
the district by over 66,000 and increased the num-
ber of registered Democrats by about 24,000, all to
produce a safe Democratic district. See id., at 499,
501.
 After the advisory committee adopted the map on a
party-line vote, State Senate President Thomas
Miller briefed the General Assembly’s Democratic
caucuses about the new map’s aims. Miller told his
colleagues that the map would give “Democrats a
real opportunity to pick up a seventh seat in the
delegation” and that “[i]n the face of Republican
gains in redistricting in other states[,] we have a
serious obligation to create this opportunity.” Id.,
at 506 (internal quotation marks omitted).
 The General Assembly adopted the plan on a party-
line vote. See id., at 506.
Maryland’s Democrats proved no less successful than
North Carolina’s Republicans in devising a voter-proof
map. In the four elections that followed (from 2012
through 2018), Democrats have never received more than
65% of the statewide congressional vote. Yet in each of
those elections, Democrats have won (you guessed it) 7 of 8
Cite as: 588 U. S. ____ (2019) 7
KAGAN, J., dissenting
House seats—including the once-reliably-Republican Sixth
District.
B
Now back to the question I asked before: Is that how
American democracy is supposed to work? I have yet to
meet the person who thinks so.
“Governments,” the Declaration of Independence states,
“deriv[e] their just Powers from the Consent of the Gov-
erned.” The Constitution begins: “We the People of the
United States.” The Gettysburg Address (almost) ends:
“[G]overnment of the people, by the people, for the people.”
If there is a single idea that made our Nation (and that
our Nation commended to the world), it is this one: The
people are sovereign. The “power,” James Madison wrote,
“is in the people over the Government, and not in the
Government over the people.” 4 Annals of Cong. 934
(1794).
Free and fair and periodic elections are the key to that
vision. The people get to choose their representatives.
And then they get to decide, at regular intervals, whether
to keep them. Madison again: “[R]epublican liberty” de-
mands “not only, that all power should be derived from the
people; but that those entrusted with it should be kept in
dependence on the people.” 2 The Federalist No. 37, p. 4
(J. & A. McLean eds. 1788). Members of the House of
Representatives, in particular, are supposed to “recollect[ ]
[that] dependence” every day. Id., No. 57, at 155. To
retain an “intimate sympathy with the people,” they must
be “compelled to anticipate the moment” when their “exer-
cise of [power] is to be reviewed.” Id., Nos. 52, 57, at 124,
155. Election day—next year, and two years later, and
two years after that—is what links the people to their
representatives, and gives the people their sovereign
power. That day is the foundation of democratic
governance.
8 RUCHO v. COMMON CAUSE
KAGAN, J., dissenting
And partisan gerrymandering can make it meaningless.
At its most extreme—as in North Carolina and Mary-
land—the practice amounts to “rigging elections.” Vieth v.
Jubelirer, 541 U.S. 267, 317 (2004) (Kennedy, J., concur-
ring in judgment) (internal quotation marks omitted). By
drawing districts to maximize the power of some voters
and minimize the power of others, a party in office at the
right time can entrench itself there for a decade or more,
no matter what the voters would prefer. Just ask the
people of North Carolina and Maryland. The “core princi-
ple of republican government,” this Court has recognized,
is “that the voters should choose their representatives, not
the other way around.” Arizona State Legislature v. Ari-
zona Independent Redistricting Comm’n, 576 U. S. ___, ___
(2015) (slip op., at 35) (internal quotation marks omitted).
Partisan gerrymandering turns it the other way around.
By that mechanism, politicians can cherry-pick voters to
ensure their reelection. And the power becomes, as Madi-
son put it, “in the Government over the people.” 4 Annals
of Cong. 934.
The majority disputes none of this. I think it important
to underscore that fact: The majority disputes none of
what I have said (or will say) about how gerrymanders
undermine democracy. Indeed, the majority concedes
(really, how could it not?) that gerrymandering is “incom-
patible with democratic principles.” Ante, at 30 (quoting
Arizona State Legislature, 576 U. S., at ___ (slip op., at 1)).
And therefore what? That recognition would seem to
demand a response. The majority offers two ideas that
might qualify as such. One is that the political process
can deal with the problem—a proposition so dubious on its
face that I feel secure in delaying my answer for some
time. See ante, at 31–33; infra, at 29–31. The other is
that political gerrymanders have always been with us.
See ante, at 8, 24. To its credit, the majority does not
frame that point as an originalist constitutional argument.
Cite as: 588 U. S. ____ (2019) 9
KAGAN, J., dissenting
After all (as the majority rightly notes), racial and resi-
dential gerrymanders were also once with us, but the
Court has done something about that fact. See ante, at
10.1 The majority’s idea instead seems to be that if we
have lived with partisan gerrymanders so long, we will
survive.
That complacency has no cause. Yes, partisan gerry-
mandering goes back to the Republic’s earliest days. (As
does vociferous opposition to it.) But big data and modern
technology—of just the kind that the mapmakers in North
Carolina and Maryland used—make today’s gerrymander-
ing altogether different from the crude linedrawing of the
past. Old-time efforts, based on little more than guesses,
sometimes led to so-called dummymanders—
gerrymanders that went spectacularly wrong. Not likely
in today’s world. Mapmakers now have access to more
granular data about party preference and voting behavior
than ever before. County-level voting data has given way
to precinct-level or city-block-level data; and increasingly,
mapmakers avail themselves of data sets providing wide-
ranging information about even individual voters. See
Brief for Political Science Professors as Amici Curiae 20–
22. Just as important, advancements in computing tech-
nology have enabled mapmakers to put that information
to use with unprecedented efficiency and precision. See
id., at 22–25. While bygone mapmakers may have drafted
three or four alternative districting plans, today’s map-
makers can generate thousands of possibilities at the
touch of a key—and then choose the one giving their party
maximum advantage (usually while still meeting tradi-
——————
1 And even putting that aside, any originalist argument would have
to deal with an inconvenient fact. The Framers originally viewed
political parties themselves (let alone their most partisan actions) with
deep suspicion, as fomenters of factionalism and “symptom[s] of disease
in the body politic.” G. Wood, Empire of Liberty: A History of the Early
Republic, 1789–1815, p. 140 (2009).
10 RUCHO v. COMMON CAUSE
KAGAN, J., dissenting
tional districting requirements). The effect is to make
gerrymanders far more effective and durable than before,
insulating politicians against all but the most titanic
shifts in the political tides. These are not your grand-
father’s—let alone the Framers’—gerrymanders.
The proof is in the 2010 pudding. That redistricting
cycle produced some of the most extreme partisan gerry-
manders in this country’s history. I’ve already recounted
the results from North Carolina and Maryland, and you’ll
hear even more about those. See supra, at 4–6; infra, at
19–20. But the voters in those States were not the only
ones to fall prey to such districting perversions. Take
Pennsylvania. In the three congressional elections occur-
ring under the State’s original districting plan (before the
State Supreme Court struck it down), Democrats received
between 45% and 51% of the statewide vote, but won only
5 of 18 House seats. See League of Women Voters v. Penn-
sylvania, ___ Pa. ___, ___, 178 A.3d 737, 764 (2018). Or go
next door to Ohio. There, in four congressional elections,
Democrats tallied between 39% and 47% of the statewide
vote, but never won more than 4 of 16 House seats. See
Ohio A. Philip Randolph Inst. v. Householder, 373
F. Supp. 3d 978, 1074 (SD Ohio 2019). (Nor is there any
reason to think that the results in those States stemmed
from political geography or non-partisan districting crite-
ria, rather than from partisan manipulation. See infra, at
15, 31.) And gerrymanders will only get worse (or depend-
ing on your perspective, better) as time goes on—as data
becomes ever more fine-grained and data analysis tech-
niques continue to improve. What was possible with paper
and pen—or even with Windows 95—doesn’t hold a candle
(or an LED bulb?) to what will become possible with de-
velopments like machine learning. And someplace along
this road, “we the people” become sovereign no longer.
Cite as: 588 U. S. ____ (2019) 11
KAGAN, J., dissenting
C
Partisan gerrymandering of the kind before us not only
subverts democracy (as if that weren’t bad enough). It
violates individuals’ constitutional rights as well. That
statement is not the lonesome cry of a dissenting Justice.
This Court has recognized extreme partisan gerrymander-
ing as such a violation for many years.
Partisan gerrymandering operates through vote dilu-
tion—the devaluation of one citizen’s vote as compared to
others. A mapmaker draws district lines to “pack” and
“crack” voters likely to support the disfavored party. See
generally Gill v. Whitford, 585 U. S. ___, ___–___ (2018)
(slip op., at 14–16). He packs supermajorities of those
voters into a relatively few districts, in numbers far greater
than needed for their preferred candidates to prevail.
Then he cracks the rest across many more districts,
spreading them so thin that their candidates will not be
able to win. Whether the person is packed or cracked, his
vote carries less weight—has less consequence—than it
would under a neutrally drawn (non-partisan) map. See
id., at ___ (KAGAN, J., concurring) (slip op., at 4). In short,
the mapmaker has made some votes count for less, be-
cause they are likely to go for the other party.
That practice implicates the Fourteenth Amendment’s
Equal Protection Clause. The Fourteenth Amendment, we
long ago recognized, “guarantees the opportunity for equal
participation by all voters in the election” of legislators.
Reynolds v. Sims, 377 U.S. 533, 566 (1964). And that
opportunity “can be denied by a debasement or dilution of
the weight of a citizen’s vote just as effectively as by wholly
prohibiting the free exercise of the franchise.” Id., at
555. Based on that principle, this Court in its one-person-
one-vote decisions prohibited creating districts with signif-
icantly different populations. A State could not, we ex-
plained, thus “dilut[e] the weight of votes because of place
of residence.” Id., at 566. The constitutional injury in a
12 RUCHO v. COMMON CAUSE
KAGAN, J., dissenting
partisan gerrymandering case is much the same, except
that the dilution is based on party affiliation. In such a
case, too, the districters have set out to reduce the weight
of certain citizens’ votes, and thereby deprive them of their
capacity to “full[y] and effective[ly] participat[e] in the
political process[ ].” Id., at 565. As Justice Kennedy (in a
controlling opinion) once hypothesized: If districters de-
clared that they were drawing a map “so as most to bur-
den [the votes of] Party X’s” supporters, it would violate
the Equal Protection Clause. Vieth, 541 U.S., at 312. For
(in the language of the one-person-one-vote decisions) it
would infringe those voters’ rights to “equal [electoral]
participation.” Reynolds, 377 U.S., at 566; see Gray v.
Sanders, 372 U.S. 368, 379–380 (1963) (“The concept of
‘we the people’ under the Constitution visualizes no pre-
ferred class of voters but equality among those who meet
the basic qualifications”).
And partisan gerrymandering implicates the First
Amendment too. That Amendment gives its greatest
protection to political beliefs, speech, and association. Yet
partisan gerrymanders subject certain voters to “disfa-
vored treatment”—again, counting their votes for less—
precisely because of “their voting history [and] their ex-
pression of political views.” Vieth, 541 U.S., at 314 (opin-
ion of Kennedy, J.). And added to that strictly personal
harm is an associational one. Representative democracy is
“unimaginable without the ability of citizens to band
together in [support of] candidates who espouse their
political views.” California Democratic Party v. Jones, 530
U.S. 567, 574 (2000). By diluting the votes of certain
citizens, the State frustrates their efforts to translate
those affiliations into political effectiveness. See Gill, 585
U. S., at ___ (KAGAN, J., concurring) (slip op., at 9) (“Mem-
bers of the disfavored party[,] deprived of their natural
political strength[,] may face difficulties fundraising,
registering voters, [and] eventually accomplishing their
Cite as: 588 U. S. ____ (2019) 13
KAGAN, J., dissenting
policy objectives”). In both those ways, partisan gerry-
manders of the kind we confront here undermine the
protections of “democracy embodied in the First Amend-
ment.” Elrod v. Burns, 427 U.S. 347, 357 (1976) (internal
quotation marks omitted).
Though different Justices have described the constitu-
tional harm in diverse ways, nearly all have agreed on this
much: Extreme partisan gerrymandering (as happened in
North Carolina and Maryland) violates the Constitution.
See, e.g., Vieth, 541 U.S., at 293 (plurality opinion) (“[A]n
excessive injection of politics [in districting] is unlawful”
(emphasis deleted)); id., at 316 (opinion of Kennedy, J.)
(“[P]artisan gerrymandering that disfavors one party is
[im]permissible”); id., at 362 (BREYER, J., dissenting)
(Gerrymandering causing political “entrenchment” is a
“violat[ion of] the Constitution’s Equal Protection
Clause”); Davis v. Bandemer, 478 U.S. 109, 132 (1986)
(plurality opinion) (“[U]nconstitutional discrimination”
occurs “when the electoral system is arranged in a manner
that will consistently degrade [a voter’s] influence on the
political process”); id., at 165 (Powell, J., concurring)
(“Unconstitutional gerrymandering” occurs when “the
boundaries of the voting districts have been distorted
deliberately” to deprive voters of “an equal opportunity to
participate in the State’s legislative processes”). Once
again, the majority never disagrees; it appears to accept
the “principle that each person must have an equal say in
the election of representatives.” Ante, at 20. And indeed,
without this settled and shared understanding that cases
like these inflict constitutional injury, the question of
whether there are judicially manageable standards for
resolving them would never come up.
II
So the only way to understand the majority’s opinion is
as follows: In the face of grievous harm to democratic
14 RUCHO v. COMMON CAUSE
KAGAN, J., dissenting
governance and flagrant infringements on individuals’
rights—in the face of escalating partisan manipulation
whose compatibility with this Nation’s values and law no
one defends—the majority declines to provide any remedy.
For the first time in this Nation’s history, the majority
declares that it can do nothing about an acknowledged
constitutional violation because it has searched high and
low and cannot find a workable legal standard to apply.
The majority gives two reasons for thinking that the
adjudication of partisan gerrymandering claims is beyond
judicial capabilities. First and foremost, the majority
says, it cannot find a neutral baseline—one not based on
contestable notions of political fairness—from which to
measure injury. See ante, at 15–19. According to the
majority, “[p]artisan gerrymandering claims invariably
sound in a desire for proportional representation.” Ante,
at 16. But the Constitution does not mandate proportional
representation. So, the majority contends, resolving those
claims “inevitably” would require courts to decide what is
“fair” in the context of districting. Ante, at 17. They
would have “to make their own political judgment about
how much representation particular political parties
deserve” and “to rearrange the challenged districts to
achieve that end.” Ibid. (emphasis in original). And sec-
ond, the majority argues that even after establishing a
baseline, a court would have no way to answer “the deter-
minative question: ‘How much is too much?’ ” Ante, at 19.
No “discernible and manageable” standard is available,
the majority claims—and so courts could willy-nilly be-
come embroiled in fixing every districting plan. Ante, at
20; see ante, at 15–16.
I’ll give the majority this one—and important—thing: It
identifies some dangers everyone should want to avoid.
Judges should not be apportioning political power based
on their own vision of electoral fairness, whether propor-
tional representation or any other. And judges should not
Cite as: 588 U. S. ____ (2019) 15
KAGAN, J., dissenting
be striking down maps left, right, and center, on the view
that every smidgen of politics is a smidgen too much.
Respect for state legislative processes—and restraint in
the exercise of judicial authority—counsels intervention in
only egregious cases.
But in throwing up its hands, the majority misses some-
thing under its nose: What it says can’t be done has been
done. Over the past several years, federal courts across
the country—including, but not exclusively, in the deci-
sions below—have largely converged on a standard for
adjudicating partisan gerrymandering claims (striking
down both Democratic and Republican districting plans in
the process). See also Ohio A. Philip Randolph Inst., 373
F. Supp. 3d 978; League of Women Voters of Michigan v.
Benson, 373 F. Supp. 3d 867 (ED Mich. 2019). And that
standard does what the majority says is impossible. The
standard does not use any judge-made conception of elec-
toral fairness—either proportional representation or any
other; instead, it takes as its baseline a State’s own crite-
ria of fairness, apart from partisan gain. And by requiring
plaintiffs to make difficult showings relating to both pur-
pose and effects, the standard invalidates the most ex-
treme, but only the most extreme, partisan gerrymanders.
Below, I first explain the framework courts have devel-
oped, and describe its application in these two cases.
Doing so reveals in even starker detail than before how
much these partisan gerrymanders deviated from demo-
cratic norms. As I lay out the lower courts’ analyses, I
consider two specific criticisms the majority levels—each
of which reveals a saddening nonchalance about the threat
such districting poses to self-governance. All of that lays
the groundwork for then assessing the majority’s more
general view, described above, that judicial policing in this
area cannot be either neutral or restrained. The lower
courts’ reasoning, as I’ll show, proves the opposite.
16 RUCHO v. COMMON CAUSE
KAGAN, J., dissenting
A
Start with the standard the lower courts used. The
majority disaggregates the opinions below, distinguishing
the one from the other and then chopping up each into “a
number of ‘tests.’ ” Ante, at 22; see ante, at 22–30. But in
doing so, it fails to convey the decisions’ most significant—
and common—features. Both courts focused on the harm
of vote dilution, see supra, at 11, though the North Caro-
lina court mostly grounded its analysis in the Fourteenth
Amendment and the Maryland court in the First. And
both courts (like others around the country) used basically
the same three-part test to decide whether the plaintiffs
had made out a vote dilution claim. As many legal stand-
ards do, that test has three parts: (1) intent; (2) effects;
and (3) causation. First, the plaintiffs challenging a dis-
tricting plan must prove that state officials’ “predominant
purpose” in drawing a district’s lines was to “entrench
[their party] in power” by diluting the votes of citizens
favoring its rival. Rucho, 318 F. Supp. 3d, at 864 (quoting
Arizona State Legislature, 576 U. S., at ___ (slip op., at 1)).
Second, the plaintiffs must establish that the lines drawn
in fact have the intended effect by “substantially” diluting
their votes. Lamone, 348 F. Supp. 3d, at 498. And third,
if the plaintiffs make those showings, the State must come
up with a legitimate, non-partisan justification to save its
map. See Rucho, 318 F. Supp. 3d, at 867.2 If you are a
lawyer, you know that this test looks utterly ordinary. It
is the sort of thing courts work with every day.
Turn now to the test’s application. First, did the North
Carolina and Maryland districters have the predominant
——————
2 Neither North Carolina nor Maryland offered much of an alterna-
tive explanation for the evidence that the plaintiffs put forward.
Presumably, both States had trouble coming up with something. Like
the majority, see ante, at 25, I therefore pass quickly over this part of
the test.
Cite as: 588 U. S. ____ (2019) 17
KAGAN, J., dissenting
purpose of entrenching their own party in power? Here,
the two District Courts catalogued the overwhelming
direct evidence that they did. To remind you of some
highlights, see supra, at 4–6: North Carolina’s redistrict-
ing committee used “Partisan Advantage” as an official
criterion for drawing district lines. And from the first to
the last, that committee’s chair (along with his mapmaker)
acted to ensure a 10–3 partisan split, whatever the
statewide vote, because he thought that “electing Republi-
cans is better than electing Democrats.” For their part,
Maryland’s Democrats—the Governor, senior Congress-
man, and State Senate President alike—openly admitted
to a single driving purpose: flip the Sixth District from
Republican to Democratic. They did not blanch from
moving some 700,000 voters into new districts (when one-
person-one-vote rules required relocating just 10,000) for
that reason and that reason alone.
The majority’s response to the District Courts’ purpose
analysis is discomfiting. The majority does not contest the
lower courts’ findings; how could it? Instead, the majority
says that state officials’ intent to entrench their party in
power is perfectly “permissible,” even when it is the pre-
dominant factor in drawing district lines. Ante, at 23. But
that is wrong. True enough, that the intent to inject “po-
litical considerations” into districting may not raise any
constitutional concerns. In Gaffney v. Cummings, 412
U.S. 735 (1973), for example, we thought it non-
problematic when state officials used political data to
ensure rough proportional representation between the two
parties. And true enough that even the naked purpose to
gain partisan advantage may not rise to the level of consti-
tutional notice when it is not the driving force in mapmak-
ing or when the intended gain is slight. See Vieth, 541
U.S., at 286 (plurality opinion). But when political actors
have a specific and predominant intent to entrench them-
selves in power by manipulating district lines, that goes
18 RUCHO v. COMMON CAUSE
KAGAN, J., dissenting
too far. Consider again Justice Kennedy’s hypothetical of
mapmakers who set out to maximally burden (i.e., make
count for as little as possible) the votes going to a rival
party. See supra, at 12. Does the majority really think
that goal is permissible? But why even bother with hypo-
theticals? Just consider the purposes here. It cannot be
permissible and thus irrelevant, as the majority claims,
that state officials have as their purpose the kind of gro-
tesquely gerrymandered map that, according to all this
Court has ever said, violates the Constitution. See supra,
at 13.
On to the second step of the analysis, where the plain-
tiffs must prove that the districting plan substantially
dilutes their votes. The majority fails to discuss most of
the evidence the District Courts relied on to find that the
plaintiffs had done so. See ante, at 23–24. But that evi-
dence—particularly from North Carolina—is the key to
understanding both the problem these cases present and
the solution to it they offer. The evidence reveals just how
bad the two gerrymanders were (in case you had any
doubts). And it shows how the same technologies and data
that today facilitate extreme partisan gerrymanders also
enable courts to discover them, by exposing just how much
they dilute votes. See Vieth, 541 U.S., at 312–313 (opin-
ion of Kennedy, J.) (predicting that development).
Consider the sort of evidence used in North Carolina
first. There, the plaintiffs demonstrated the districting
plan’s effects mostly by relying on what might be called
the “extreme outlier approach.” (Here’s a spoiler: the
State’s plan was one.) The approach—which also has
recently been used in Michigan and Ohio litigation—
begins by using advanced computing technology to ran-
domly generate a large collection of districting plans that
incorporate the State’s physical and political geography
and meet its declared districting criteria, except for parti-
san gain. For each of those maps, the method then uses
Cite as: 588 U. S. ____ (2019) 19
KAGAN, J., dissenting
actual precinct-level votes from past elections to determine
a partisan outcome (i.e., the number of Democratic and
Republican seats that map produces). Suppose we now
have 1,000 maps, each with a partisan outcome attached
to it. We can line up those maps on a continuum—the
most favorable to Republicans on one end, the most favor-
able to Democrats on the other.3 We can then find the
median outcome—that is, the outcome smack dab in the
center—in a world with no partisan manipulation. And
we can see where the State’s actual plan falls on the spec-
trum—at or near the median or way out on one of the
tails? The further out on the tail, the more extreme the
partisan distortion and the more significant the vote
dilution. See generally Brief for Eric S. Lander as Amicus
Curiae 7–22.
Using that approach, the North Carolina plaintiffs
offered a boatload of alternative districting plans—all
showing that the State’s map was an out-out-out-outlier.
One expert produced 3,000 maps, adhering in the way
described above to the districting criteria that the North
Carolina redistricting committee had used, other than
partisan advantage. To calculate the partisan outcome of
those maps, the expert also used the same election data (a
composite of seven elections) that Hofeller had employed
when devising the North Carolina plan in the first in-
stance. The results were, shall we say, striking. Every
single one of the 3,000 maps would have produced at least
one more Democratic House Member than the State’s
actual map, and 77% would have elected three or four
more. See Rucho, 318 F. Supp. 3d, at 875–876, 894; App.
——————
3 As I’ll discuss later, this distribution of outcomes provides what the
majority says does not exist—a neutral comparator for the State’s own
plan. See ante, at 16–19; supra, at 14; infra, at 22–25. It essentially
answers the question: In a State with these geographic features and
this distribution of voters and this set of districting criteria—but
without partisan manipulation—what would happen?
20 RUCHO v. COMMON CAUSE
KAGAN, J., dissenting
276. A second expert obtained essentially the same re-
sults with maps conforming to more generic districting
criteria (e.g., compactness and contiguity of districts).
Over 99% of that expert’s 24,518 simulations would have
led to the election of at least one more Democrat, and over
70% would have led to two or three more. See Rucho, 318
F. Supp. 3d, at 893–894. Based on those and other find-
ings, the District Court determined that the North Caro-
lina plan substantially dilutes the plaintiffs’ votes.4
Because the Maryland gerrymander involved just one
district, the evidence in that case was far simpler—but no
less powerful for that. You’ve heard some of the numbers
before. See supra, at 6. The 2010 census required only a
minimal change in the Sixth District’s population—the
subtraction of about 10,000 residents from more than
700,000. But instead of making a correspondingly mini-
mal adjustment, Democratic officials reconfigured the
entire district. They moved 360,000 residents out and
another 350,000 in, while splitting some counties for the
first time in almost two centuries. The upshot was a
district with 66,000 fewer Republican voters and 24,000
more Democratic ones. In the old Sixth, 47% of registered
voters were Republicans and only 36% Democrats. But in
the new Sixth, 44% of registered voters were Democrats
and only 33% Republicans. That reversal of the district’s
partisan composition translated into four consecutive
Democratic victories, including in a wave election year for
——————
4 The District Court also relied on actual election results (under both
the new plan and the similar one preceding it) and on mathematical
measurements of the new plan’s “partisan asymmetry.” See Rucho, 318
F. Supp. 3d, at 884–895. Those calculations assess whether supporters
of the two parties can translate their votes into representation with
equal ease. See Stephanopoulos & McGhee, The Measure of a Metric,
70 Stan. L. Rev. 1503, 1505–1507 (2018). The court found that the new
North Carolina plan led to extreme asymmetry, compared both to plans
used in the rest of the country and to plans previously used in the
State. See Rucho, 318 F. Supp. 3d, at 886–887, 892–893.
Cite as: 588 U. S. ____ (2019) 21
KAGAN, J., dissenting
Republicans (2014). In what was once a party stronghold,
Republicans now have little or no chance to elect their
preferred candidate. The District Court thus found that
the gerrymandered Maryland map substantially dilutes
Republicans’ votes. See Lamone, 348 F. Supp. 3d, at 519–
520.
The majority claims all these findings are mere “prog-
nostications” about the future, in which no one “can have
any confidence.” Ante, at 23 (internal quotation marks
omitted). But the courts below did not gaze into crystal
balls, as the majority tries to suggest. Their findings
about these gerrymanders’ effects on voters—both in the
past and predictably in the future—were evidence-based,
data-based, statistics-based. Knowledge-based, one might
say. The courts did what anyone would want a deci-
sionmaker to do when so much hangs in the balance.
They looked hard at the facts, and they went where the
facts led them. They availed themselves of all the infor-
mation that mapmakers (like Hofeller and Hawkins) and
politicians (like Lewis and O’Malley) work so hard to
amass and then use to make every districting decision.
They refused to content themselves with unsupported and
out-of-date musings about the unpredictability of the
American voter. See ante, at 24–25; but see Brief for
Political Science Professors as Amici Curiae 14–20 (citing
chapter and verse to the contrary). They did not bet
America’s future—as today the majority does—on the idea
that maps constructed with so much expertise and care to
make electoral outcomes impervious to voting would
somehow or other come apart. They looked at the evi-
dence—at the facts about how these districts operated—
and they could reach only one conclusion. By substantially
diluting the votes of citizens favoring their rivals, the
politicians of one party had succeeded in entrenching
themselves in office. They had beat democracy.
22 RUCHO v. COMMON CAUSE
KAGAN, J., dissenting
B
The majority’s broadest claim, as I’ve noted, is that this
is a price we must pay because judicial oversight of parti-
san gerrymandering cannot be “politically neutral” or
“manageable.” Ante, at 19; see supra, at 14. Courts, the
majority argues, will have to choose among contested
notions of electoral fairness. (Should they take as the
ideal mode of districting proportional representation,
many competitive seats, adherence to traditional district-
ing criteria, or so forth?) See ante, at 16–19. And even
once courts have chosen, the majority continues, they will
have to decide “[h]ow much is too much?”—that is, how
much deviation from the chosen “touchstone” to allow?
Ante, at 19–20. In answering that question, the majority
surmises, they will likely go far too far. See ante, at 15.
So the whole thing is impossible, the majority concludes.
To prove its point, the majority throws a bevy of question
marks on the page. (I count nine in just two paragraphs.
See ante, at 19–20.) But it never tries to analyze the
serious question presented here—whether the kind of
standard developed below falls prey to those objections, or
instead allows for neutral and manageable oversight. The
answer, as you’ve already heard enough to know, is the
latter. That kind of oversight is not only possible; it’s been
done.
Consider neutrality first. Contrary to the majority’s
suggestion, the District Courts did not have to—and in
fact did not—choose among competing visions of electoral
fairness. That is because they did not try to compare the
State’s actual map to an “ideally fair” one (whether based
on proportional representation or some other criterion).
Instead, they looked at the difference between what the
State did and what the State would have done if politi-
cians hadn’t been intent on partisan gain. Or put differ-
ently, the comparator (or baseline or touchstone) is the
result not of a judge’s philosophizing but of the State’s own
Cite as: 588 U. S. ____ (2019) 23
KAGAN, J., dissenting
characteristics and judgments. The effects evidence in
these cases accepted as a given the State’s physical geog-
raphy (e.g., where does the Chesapeake run?) and political
geography (e.g., where do the Democrats live on top of
each other?). So the courts did not, in the majority’s
words, try to “counteract ‘natural’ gerrymandering caused,
for example, by the urban concentration of one party.”
Ante, at 19. Still more, the courts’ analyses used the
State’s own criteria for electoral fairness—except for
naked partisan gain. Under their approach, in other
words, the State selected its own fairness baseline in the
form of its other districting criteria. All the courts did was
determine how far the State had gone off that track be-
cause of its politicians’ effort to entrench themselves in
office.
The North Carolina litigation well illustrates the point.
The thousands of randomly generated maps I’ve men-
tioned formed the core of the plaintiffs’ case that the North
Carolina plan was an “extreme[ ] outlier.” Rucho, 318
F. Supp. 3d, at 852 (internal quotation marks omitted); see
supra, at 18–20. Those maps took the State’s political
landscape as a given. In North Carolina, for example,
Democratic voters are highly concentrated in cities. That
fact was built into all the maps; it became part of the
baseline. See Rucho, 318 F. Supp. 3d, at 896–897. On top
of that, the maps took the State’s legal landscape as a
given. They incorporated the State’s districting priorities,
excluding partisanship. So in North Carolina, for exam-
ple, all the maps adhered to the traditional criteria of
contiguity and compactness. See supra, at 19–20. But the
comparator maps in another State would have incorpo-
rated different objectives—say, the emphasis Arizona
places on competitive districts or the requirement Iowa
imposes that counties remain whole. See Brief for Math-
ematicians et al. as Amici Curiae 19–20. The point is that
the assemblage of maps, reflecting the characteristics and
24 RUCHO v. COMMON CAUSE
KAGAN, J., dissenting
judgments of the State itself, creates a neutral baseline
from which to assess whether partisanship has run amok.
Extreme outlier as to what? As to the other maps the
State could have produced given its unique political geog-
raphy and its chosen districting criteria. Not as to the
maps a judge, with his own view of electoral fairness,
could have dreamed up.
The Maryland court lacked North Carolina’s fancy
evidence, but analyzed the gerrymander’s effects in much
the same way—not as against an ideal goal, but as against
an ex ante baseline. To see the difference, shift gears for a
moment and compare Maryland and Massachusetts—both
of which (aside from Maryland’s partisan gerrymander)
use traditional districting criteria. In those two States
alike, Republicans receive about 35% of the vote in
statewide elections. See Almanac of American Politics
2016, at 836, 880. But the political geography of the
States differs. In Massachusetts, the Republican vote is
spread evenly across the State; because that is so, district-
ing plans (using traditional criteria of contiguity and
compactness) consistently lead to an all-Democratic con-
gressional delegation. By contrast, in Maryland, Republi-
cans are clumped—into the Eastern Shore (the First Dis-
trict) and the Northwest Corner (the old Sixth). Claims of
partisan gerrymandering in those two States could come
out the same way if judges, à la the majority, used their
own visions of fairness to police districting plans; a judge
in each State could then insist, in line with proportional
representation, that 35% of the vote share entitles citizens
to around that much of the delegation. But those suits
would not come out the same if courts instead asked: What
would have happened, given the State’s natural political
geography and chosen districting criteria, had officials not
indulged in partisan manipulation? And that is what the
District Court in Maryland inquired into. The court did
not strike down the new Sixth District because a judicial
Cite as: 588 U. S. ____ (2019) 25
KAGAN, J., dissenting
ideal of proportional representation commanded another
Republican seat. It invalidated that district because the
quest for partisan gain made the State override its own
political geography and districting criteria. So much,
then, for the impossibility of neutrality.
The majority’s sole response misses the point. Accord-
ing to the majority, “it does not make sense to use” a
State’s own (non-partisan) districting criteria as the base-
line from which to measure partisan gerrymandering
because those criteria “will vary from State to State and
year to year.” Ante, at 27. But that is a virtue, not a
vice—a feature, not a bug. Using the criteria the State
itself has chosen at the relevant time prevents any judicial
predilections from affecting the analysis—exactly what the
majority claims it wants. At the same time, using those
criteria enables a court to measure just what it should: the
extent to which the pursuit of partisan advantage—by
these legislators at this moment—has distorted the State’s
districting decisions. Sure, different non-partisan criteria
could result, as the majority notes, in different partisan
distributions to serve as the baseline. Ante, at 28. But
that in itself raises no issue: Everyone agrees that state
officials using non-partisan criteria (e.g., must counties be
kept together? should districts be compact?) have wide
latitude in districting. The problem arises only when
legislators or mapmakers substantially deviate from the
baseline distribution by manipulating district lines for
partisan gain. So once again, the majority’s analysis
falters because it equates the demand to eliminate parti-
san gerrymandering with a demand for a single partisan
distribution—the one reflecting proportional representa-
tion. See ante, at 16–17. But those two demands are
different, and only the former is at issue here.
The majority’s “how much is too much” critique fares no
better than its neutrality argument. How about the fol-
lowing for a first-cut answer: This much is too much. By
26 RUCHO v. COMMON CAUSE
KAGAN, J., dissenting
any measure, a map that produces a greater partisan
skew than any of 3,000 randomly generated maps (all with
the State’s political geography and districting criteria built
in) reflects “too much” partisanship. Think about what I
just said: The absolute worst of 3,001 possible maps. The
only one that could produce a 10–3 partisan split even as
Republicans got a bare majority of the statewide vote.
And again: How much is too much? This much is too
much: A map that without any evident non-partisan dis-
tricting reason (to the contrary) shifted the composition of
a district from 47% Republicans and 36% Democrats to
33% Republicans and 42% Democrats. A map that in 2011
was responsible for the largest partisan swing of a con-
gressional district in the country. See Lamone, 348
F. Supp. 3d, at 519. Even the majority acknowledges that
“[t]hese cases involve blatant examples of partisanship
driving districting decisions.” Ante, at 27. If the majority
had done nothing else, it could have set the line here.
How much is too much? At the least, any gerrymanders as
bad as these.
And if the majority thought that approach too case-
specific, see ante, at 28, it could have used the lower
courts’ general standard—focusing on “predominant”
purpose and “substantial” effects—without fear of inde-
terminacy. I do not take even the majority to claim that
courts are incapable of investigating whether legislators
mainly intended to seek partisan advantage. See ante, at
19–20 (focusing on the difficulty of measuring effects).
That is for good reason. Although purpose inquiries carry
certain hazards (which courts must attend to), they are a
common form of analysis in constitutional cases. See, e.g.,
Miller v. Johnson, 515 U.S. 900, 916 (1995); Church of
Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 533
(1993); Washington v. Davis, 426 U.S. 229, 239 (1976).
Those inquiries would be no harder here than in other
contexts.
Cite as: 588 U. S. ____ (2019) 27
KAGAN, J., dissenting
Nor is there any reason to doubt, as the majority does,
the competence of courts to determine whether a district
map “substantially” dilutes the votes of a rival party’s
supporters from the everything-but-partisanship baseline
described above. (Most of the majority’s difficulties here
really come from its idea that ideal visions set the base-
line. But that is double-counting—and, as already shown,
wrong to boot.) As this Court recently noted, “the law is
full of instances” where a judge’s decision rests on “esti-
mating rightly . . . some matter of degree”—including the
“substantial[ity]” of risk or harm. Johnson v. United
States, 576 U. S. ___, ___ (2015) (slip op., at 12) (internal
quotation marks omitted); see, e.g., Ohio v. American
Express Co., 585 U. S. ___, ___ (2018) (slip op., at 9) (de-
termining “substantial anticompetitive effect[s]” when
applying the Sherman Act); United States v. Davis, ante,
at 7–10 (KAVANAUGH, J., dissenting) (cataloging countless
statutes requiring a “substantial” risk of harm). The
majority is wrong to think that these laws typically (let
alone uniformly) further “confine[ ] and guide[ ]” judicial
decisionmaking. Ante, at 28. They do not, either in them-
selves or through “statutory context.” Ibid. To the extent
additional guidance has developed over the years (as
under the Sherman Act), courts themselves have been its
author—as they could be in this context too. And contrary
to the majority’s suggestion, see ibid., courts all the time
make judgments about the substantiality of harm without
reducing them to particular percentages. If courts are no
longer competent to do so, they will have to relinquish,
well, substantial portions of their docket.
And the combined inquiry used in these cases set the
bar high, so that courts could intervene in the worst parti-
san gerrymanders, but no others. Or to say the same
thing, so that courts could intervene in the kind of ex-
treme gerrymanders that nearly every Justice for decades
has thought to violate the Constitution. See supra, at 13.
28 RUCHO v. COMMON CAUSE
KAGAN, J., dissenting
Illicit purpose was simple to show here only because poli-
ticians and mapmakers thought their actions could not be
attacked in court. See Rucho, 318 F. Supp. 3d, at 808
(quoting Lewis’s statements to that effect). They therefore
felt free to openly proclaim their intent to entrench their
party in office. See supra, at 4–6. But if the Court today
had declared that behavior justiciable, such smoking guns
would all but disappear. Even assuming some officials
continued to try implementing extreme partisan gerry-
manders,5 they would not brag about their efforts. So
plaintiffs would have to prove the intent to entrench
through circumstantial evidence—essentially showing
that no other explanation (no geographic feature or non-
partisan districting objective) could explain the districting
plan’s vote dilutive effects. And that would be impossible
unless those effects were even more than substantial—
unless mapmakers had packed and cracked with abandon
in unprecedented ways. As again, they did here. That the
two courts below found constitutional violations does not
mean their tests were unrigorous; it means that the con-
duct they confronted was constitutionally appalling—by
even the strictest measure, inordinately partisan.
The majority, in the end, fails to understand both the
plaintiffs’ claims and the decisions below. Everything in
today’s opinion assumes that these cases grew out of a
“desire for proportional representation” or, more generally
phrased, a “fair share of political power.” Ante, at 16, 21.
And everything in it assumes that the courts below had to
(and did) decide what that fair share would be. But that is
——————
5 A decision of this Court invalidating the North Carolina and Mary-
land gerrymanders would of course have curbed much of that behavior.
In districting cases no less than others, officials respond to what this
Court determines the law to sanction. See, e.g., Charles & Fuentes-
Rohwer, Judicial Intervention as Judicial Restraint, 132 Harv. L. Rev.
236, 269 (2018) (discussing how the Court’s prohibition of racial gerry-
manders affected districting).
Cite as: 588 U. S. ____ (2019) 29
KAGAN, J., dissenting
not so. The plaintiffs objected to one specific practice—the
extreme manipulation of district lines for partisan gain.
Elimination of that practice could have led to proportional
representation. Or it could have led to nothing close.
What was left after the practice’s removal could have been
fair, or could have been unfair, by any number of
measures. That was not the crux of this suit. The plain-
tiffs asked only that the courts bar politicians from en-
trenching themselves in power by diluting the votes of
their rivals’ supporters. And the courts, using neutral and
manageable—and eminently legal—standards, provided
that (and only that) relief. This Court should have
cheered, not overturned, that restoration of the people’s
power to vote.
III
This Court has long understood that it has a special
responsibility to remedy violations of constitutional rights
resulting from politicians’ districting decisions. Over 50
years ago, we committed to providing judicial review in
that sphere, recognizing as we established the one-person-
one-vote rule that “our oath and our office require no less.”
Reynolds, 377 U.S., at 566. Of course, our oath and our
office require us to vindicate all constitutional rights. But
the need for judicial review is at its most urgent in cases
like these. “For here, politicians’ incentives conflict with
voters’ interests, leaving citizens without any political
remedy for their constitutional harms.” Gill, 585 U. S., at
___ (KAGAN, J., concurring) (slip op., at 14). Those harms
arise because politicians want to stay in office. No one can
look to them for effective relief.
The majority disagrees, concluding its opinion with a
paean to congressional bills limiting partisan gerryman-
ders. “Dozens of [those] bills have been introduced,” the
majority says. Ante, at 33. One was “introduced in 2005
and has been reintroduced in every Congress since.” Ibid.
30 RUCHO v. COMMON CAUSE
KAGAN, J., dissenting
And might be reintroduced until the end of time. Because
what all these bills have in common is that they are not
laws. The politicians who benefit from partisan gerry-
mandering are unlikely to change partisan gerrymander-
ing. And because those politicians maintain themselves in
office through partisan gerrymandering, the chances for
legislative reform are slight.
No worries, the majority says; it has another idea. The
majority notes that voters themselves have recently ap-
proved ballot initiatives to put power over districting in
the hands of independent commissions or other non-
partisan actors. See ante, at 32. Some Members of the
majority, of course, once thought such initiatives unconsti-
tutional. See Arizona State Legislature, 576 U. S., at ___
(ROBERTS, C. J., dissenting) (slip op., at 1). But put that
aside. Fewer than half the States offer voters an oppor-
tunity to put initiatives to direct vote; in all the rest (in-
cluding North Carolina and Maryland), voters are depend-
ent on legislators to make electoral changes (which for all
the reasons already given, they are unlikely to do). And
even when voters have a mechanism they can work them-
selves, legislators often fight their efforts tooth and nail.
Look at Missouri. There, the majority touts a voter-
approved proposal to turn districting over to a state de-
mographer. See ante, at 32. But before the demographer
had drawn a single line, Members of the state legislature
had introduced a bill to start undoing the change. See Mo.
H. J. Res. 48, 100th Gen. Assembly, 1st Reg. Sess. (2019).
I’d put better odds on that bill’s passage than on all the
congressional proposals the majority cites.
The majority’s most perplexing “solution” is to look to
state courts. Ante, at 30. “[O]ur conclusion,” the majority
states, does not “condemn complaints about districting to
echo into a void”: Just a few years back, “the Supreme
Court of Florida struck down that State’s congressional
districting plan as a violation” of the State Constitution.
Cite as: 588 U. S. ____ (2019) 31
KAGAN, J., dissenting
Ante, at 31; see League of Women Voters of Florida v.
Detzner, 172 So. 3d 363 (2015). And indeed, the majority
might have added, the Supreme Court of Pennsylvania
last year did the same thing. See League of Women Voters,
___ Pa., at ___, 178 A. 3d, at 818. But what do those
courts know that this Court does not? If they can develop
and apply neutral and manageable standards to identify
unconstitutional gerrymanders, why couldn’t we?6
We could have, and we should have. The gerrymanders
here—and they are typical of many—violated the constitu-
tional rights of many hundreds of thousands of American
citizens. Those voters (Republicans in the one case, De-
mocrats in the other) did not have an equal opportunity to
participate in the political process. Their votes counted for
far less than they should have because of their partisan
affiliation. When faced with such constitutional wrongs,
courts must intervene: “It is emphatically the province
and duty of the judicial department to say what the law
is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). That
is what the courts below did. Their decisions are worth a
read. They (and others that have recently remedied simi-
lar violations) are detailed, thorough, painstaking. They
——————
6 Contrary to the majority’s suggestion, state courts do not typically
have more specific “standards and guidance” to apply than federal
courts have. Ante, at 31. The Pennsylvania Supreme Court based its
gerrymandering decision on a constitutional clause providing only that
“elections shall be free and equal” and no one shall “interfere to prevent
the free exercise of the right of suffrage.” League of Women Voters, ___
Pa., at ___–___, 178 A. 3d, at 803–804 (quoting Pa. Const., Art. I, §5).
And even the Florida “Free Districts Amendment,” which the majority
touts, says nothing more than that no districting plan “shall be drawn
with the intent to favor or disfavor a political party.” Fla. Const., Art.
III, §20(a). If the majority wants the kind of guidance that will keep
courts from intervening too far in the political sphere, see ante, at 15,
that Amendment does not provide it: The standard is in fact a good deal
less exacting than the one the District Courts below applied. In any
event, only a few States have a constitutional provision like Florida’s,
so the majority’s state-court solution does not go far.
32 RUCHO v. COMMON CAUSE
KAGAN, J., dissenting
evaluated with immense care the factual evidence and
legal arguments the parties presented. They used neutral
and manageable and strict standards. They had not a
shred of politics about them. Contra the majority, see
ante, at 34, this was law.
That is not to deny, of course, that these cases have
great political consequence. They do. Among the amicus
briefs here is one from a bipartisan group of current and
former Members of the House of Representatives. They
describe all the ways partisan gerrymandering harms our
political system—what they call “a cascade of negative
results.” Brief as Amicus Curiae 5. These artificially
drawn districts shift influence from swing voters to party-
base voters who participate in primaries; make biparti-
sanship and pragmatic compromise politically difficult or
impossible; and drive voters away from an ever more
dysfunctional political process. See id., at 5–6. Last year,
we heard much the same from current and former state
legislators. In their view, partisan gerrymandering has
“sounded the death-knell of bipartisanship,” creating a
legislative environment that is “toxic” and “tribal.” Brief
as Amicus Curiae in Gill v. Whitford, O. T. 2016, No. 16–
1161, pp. 6, 25. Gerrymandering, in short, helps create
the polarized political system so many Americans loathe.
And gerrymandering is, as so many Justices have em-
phasized before, anti-democratic in the most profound
sense. See supra, at 7–8. In our government, “all political
power flows from the people.” Arizona State Legislature,
576 U. S., at ___ (slip op., at 35). And that means, as
Alexander Hamilton once said, “that the people should
choose whom they please to govern them.” 2 Debates on
the Constitution 257 (J. Elliot ed. 1891). But in Maryland
and North Carolina they cannot do so. In Maryland,
election in and election out, there are 7 Democrats and 1
Republican in the congressional delegation. In North
Carolina, however the political winds blow, there are 10
Cite as: 588 U. S. ____ (2019) 33
KAGAN, J., dissenting
Republicans and 3 Democrats. Is it conceivable that
someday voters will be able to break out of that prefabri-
cated box? Sure. But everything possible has been done
to make that hard. To create a world in which power does
not flow from the people because they do not choose their
governors.
Of all times to abandon the Court’s duty to declare the
law, this was not the one. The practices challenged in
these cases imperil our system of government. Part of the
Court’s role in that system is to defend its foundations.
None is more important than free and fair elections. With
respect but deep sadness, I dissent.