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 Carolina 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 standards do, that test has three parts:
(1) intent;
(2) effects;
and (3) causation.
First, the plaintiffs challenging a districting 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 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 redistricting 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 Republicans is better than electing Democrats.”
For their part, Maryland’s Democrats—the Governor, senior Congressman, 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 predominant factor in drawing district lines. Ante, at 23.
But that is wrong.
True enough, that the intent to inject “political considerations” into districting may not raise any constitutional concerns.
In Gaffney v. Cummings, 412 U. S. 735 (1973), for example, we thought it nonproblematic 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 constitutional notice when it is not the driving force in mapmaking 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 themselves in power by manipulating district lines, that goes 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 hypotheticals?
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 grotesquely 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 plaintiffs 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 evidence—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 (opinion 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 randomly generate a large collection of districting plans that incorporate the State’s physical and political geography and meet its declared districting criteria, except for partisan gain.
For each of those maps, the method then uses 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 favorable to Democrats on the other.
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 spectrum—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 instance.
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. 276.
A second expert obtained essentially the same results 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 findings, the District Court determined that the North Carolina 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 minimal 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 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 “prognostications” 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 decisionmaker 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 information 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 evidence—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.
...and getting away with sh*t!
The majority’s broadest claim, as I’ve noted, is that this is a price we must pay because judicial oversight of partisan 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 districting 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.
5/9
