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Chapter 2 POLITICAL QUESTIONS A. INTRODUCTION
Under certain circumstances, federal and state courts will refuse to reach the merits of cases properly before them, on the basis that the case presents a “political question” more properly resolved in the other branches of government. Since the topics covered in this casebook all involve “political” issues to varying degrees, the political question doctrine has the potential, depending how broadly and rigorously it is applied, to prevent many election law disputes from being resolved by the courts. Whether this result is a good or bad outcome depends on what one thinks about the appropriateness of courts deciding election issues. The political-question doctrine in the federal courts has a venerable, if confusing and controversial, history. The doctrine can be traced back to no less than Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803), in which Chief Justice John Marshall spoke of certain powers of the President lying in his sole discretion, beyond the control of courts. Challenges to the President’s exercise of such discretionary authority presented “[q]uestions, in their nature political,” unfit for judicial resolution. As the Court explained:
Where the head of a department acts in a case, in which executive discretion is to be exercised; in which he is the mere organ of executive will; * * * any application to a court to control, in any respect, his conduct, would be rejected without hesitation. But where he is directed by law to do a certain act affecting the absolute rights of individuals, in the performance of which he is not placed under the particular direction of the President, and the performance of which, the President cannot lawfully forbid, and therefore is never presumed to have forbidden * * *, it is not perceived on what ground the courts of the country are further excused from the duty of giving judgment, that right be done to an injured individual, than if the same services were to be performed by a person not the head of a department.
Id. at 170-71. The Supreme Court has since considered whether the political-question doctrine applies to issues besides the unique facts presented in Marbury. Some of these cases involved various aspects of election law, and the Court held that they did not present non-justiciable political questions. See, e.g., Nixon v. Herndon, 273 U.S. 536, 540 (1927) (holding racial discrimination in Texas Democratic primary unconstitutional, and remarking that to invoke the political question doctrine because the political process was at issue was “little more than a play upon words”); Baker v. Carr, 369 U.S. 186 (1962) [p. XXX] (holding that an equal-protection challenge to gerrymandering of state legislative districts did not present a political question, and distilling criteria to apply the doctrine, addressed below). The doctrine has generated a large amount of scholarly commentary. Some writers defend the doctrine, arguing that federal judges should be able to exercise prudential judgment to defer reaching the merits of particularly difficult or contentious issues, which are better resolved by the other, more democratically accountable branches of government. E.g., ALEXANDER BICKEL, THE LEAST DANGEROUS BRANCH (1962). In contrast, other writers argue that the doctrine is an inappropriate and unprincipled exercise of authority by judges, when they are presented with cases otherwise properly before them. On this account, the courts have a duty to reach the merits, particularly when constitutional rights are involved, and the doctrine itself is based on “political”
2 considerations that judges should not take into account. E.g., Martin H. Redish, Judicial Review and the Political Question, 79 NW. U. L. REV. 1031 (1985). Scholarly discussion continues apace. E.g., Rachel E. Barkow, More Supreme than Court? The Fall of the Political Question Doctrine, 102 COLUM. L. REV. 237 (2002); Jesse Choper, The Political Question Doctrine: Suggested Criteria, 54 DUKE L.J. 1457 (2005); Richard F. Fallon, Jr., Judicially Manageable Standards and Constitutional Meaning, 119 HARV. L. REV. 1275 (2006). As you read the cases in the remainder of this Chapter, consider whether the doctrine is more (or less) persuasively applied when the case involves the structure of governance, as election-law issues do, as opposed to some other aspect of the substantive authority of the other branches (e.g., the foreign-affairs powers of the President). The political question doctrine has also been applied by state courts considering legal challenges to the actions of other branches of the state government. To the extent they apply the doctrine, some states borrow the criteria developed in federal courts. But on the whole, the doctrine has been applied less robustly by many state courts, in part because state constitutions are typically much longer and more detailed than the Federal Constitution, and seem to call for more judicial interpretation and application of those provisions. Since most state judges are subject to periodic elections to attain or retain office, some have argued that this greater democratic accountability makes the doctrine less appropriate at the state level. Compare Helen Hershkoff, State Courts and the “Passive Virtues”: Rethinking the Judicial Function, 114 HARV. L. REV. 1833 (2001) (advancing such an argument), with Christine M. Durham, The Judicial Branch in State Government: Parables of Law, Politics, and Power, 76 N.Y.U. L. REV. 1601 (2001) (expressing skepticism of an activist role by state judiciaries). See also James A. Gardner, A Post-Vieth Strategy for Litigating Partisan Gerrymandering Claims, 3 ELECTION L.J. 643 (2004) (arguing that claims barred by the political-question doctrine in federal court can be pursued in state court).
B. THE NON-JUSTICIABILITY OF THE GUARANTEE CLAUSE
Article IV, § 4 of the U.S. Constitution states that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government.” Beginning with the canonical decision in Luther v. Borden, 48 U.S. (7 How.) 1 (1849), the Supreme Court has held that federal courts cannot hear legal challenges to state governmental structures or processes on the ground that they violate the Guarantee Clause. Luther involved a series of changes to the state constitution of Rhode Island, which resulted in controversy and confusion about the proper governmental authority in that state. The case came before the Court due to a challenge to a search undertaken by a sheriff of the Rhode Island government. The challenger argued that the search was unlawful, since it was undertaken on behalf of a government that was not in a republican form. The Court held that the challenge was non-justiciable, since it was up to Congress to enforce the Guarantee Clause. Among other things, the Court observed that it was unclear how to determine whether or not a state had a republican form of government. While Luther has long stood for the proposition that Guarantee Clause challenges in federal court are barred by the political-question doctrine, that understanding has not prevented litigants, and the Court, from revisiting the issue, as the following cases indicate.
PACIFIC STATES TELEPHONE & TELEGRAPH CO. v. OREGON
Supreme Court of the United States. 223 U.S. 118, 32 S. Ct. 224, 56 L. Ed. 377 (1912)
MR. CHIEF JUSTICE WHITE delivered the opinion of the court [in which MR. JUSTICE MCKENNA, MR. JUSTICE HOLMES, MR. JUSTICE LURTON, MR. JUSTICE HUGHES, MR. JUSTICE VAN DEVANTER, and MR. JUSTICE LAMAR join].14 We premise by saying that while the controversy which this record presents is of much importance, it is not novel. It is important, since it calls upon us to decide whether it is the duty of the courts or the province of Congress to determine when a State has ceased to be republican in form, and to enforce the guaranty of the Constitution on that subject. It is not novel, as that question has long since been determined by this court conformably to the practise of the Government from the beginning to be political in character, and therefore not cognizable by the judicial power, but solely committed by the Constitution to the judgment of Congress. The case is this: In 1902 Oregon amended its constitution. This amendment while retaining an existing clause vesting the exclusive legislative power in a General Assembly consisting of a senate and a house of representatives added to that provision the following: “But the people reserve to themselves power to propose laws and amendments to the Constitution, and to enact or reject the same at the polls, independent of the legislative assembly, and also reserve power at their own option to approve or reject at the polls any act of the legislative assembly.” Specific means for the exercise of the power thus reserved was contained in further clauses authorizing both the amendment of the constitution and the enactment of laws to be accomplished by the method known as the initiative and that commonly referred to as the referendum. As to the first, the initiative, it suffices to say that a stated number of voters were given the right at any time to secure a submission to popular vote for approval of any matter which it was desired to have enacted into law, and providing that the proposition thus submitted when approved by popular vote should become the law of the State. The second, the referendum, provided for a reference to a popular vote, for approval or disapproval, of any law passed by the legislature, such reference to take place either as the result of the action of the legislature itself, or of a petition filed for that purpose by a specified number of voters. * * * By resort to the initiative in 1906 a law taxing certain classes of corporations was submitted, voted on and promulgated by the Governor in 1906 as having been duly adopted. By this law telephone and telegraph companies were taxed, by what was qualified as an annual license, two per centum upon their gross revenue derived from business done within the State. Penalties were provided for non-payment, and methods were created for enforcing payment in case of delinquency. The Pacific States Telephone and Telegraph Company, an Oregon corporation engaged in business in that State, made a return of its gross receipts as required by the statute and was accordingly assessed 2 per cent. upon the amount of such return. The suit which is now before us was commenced by the State to enforce payment of this assessment and the statutory penalties for delinquency. * * *
The case was argued between Justice Harlan’s death and Justice Pitney’s investiture, and during the absence of Justice Day while he attended to his wife during her final illness. As a result, it was decided by a seven-Member Court. –Eds.
4 [The company’s legal challenges] are all based upon the single contention that the creation by a State of the power to legislate by the initiative and referendum causes the prior lawful state government to be bereft of its lawful character as the result of the provisions of § 4 of Art. IV of the Constitution, that “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.” This being the basis of all the contentions, the case comes to the single issue whether the enforcement of that provision, because of its political character, is exclusively committed to Congress, or is judicial in its character. * * * “It was long ago settled that the enforcement of this guaranty belonged to the political department. Luther v. Borden, [48 U.S.] 7 How. 1 [(1849)]. In that case it was held that the question, which of the two opposing governments of Rhode Island, namely, the charter government or the government established by a voluntary convention, was the legitimate one, was a question for the determination of the political department; and when that department had decided, the courts were bound to take notice of the decision and follow it. . . .” [Taylor v. Beckham, No. 1, 178 U.S. 548 (1900).] It is indeed a singular misconception of the nature and character of our constitutional system of government to suggest that the settled distinction which the doctrine just stated points out between judicial authority over justiciable controversies and legislative power as to purely political questions tends to destroy the duty of the judiciary in proper cases to enforce the Constitution. The suggestion but results from failing to distinguish between things which are widely different, that is, the legislative duty to determine the political questions involved in deciding whether a state government republican in form exists, and the judicial power and everpresent duty whenever it becomes necessary in a controversy properly submitted to enforce and uphold the applicable provisions of the Constitution as to each and every exercise of governmental power. How better can the broad lines which distinguish these two subjects be pointed out than by considering the character of the defense in this very case? The defendant company does not contend here that it could not have been required to pay a license tax. It does not assert that it was denied an opportunity to be heard as to the amount for which it was taxed, or that there was anything inhering in the tax or involved intrinsically in the law which violated any of its constitutional rights. If such questions had been raised they would have been justiciable, and therefore would have required the calling into operation of judicial power. Instead, however, of doing any of these things, the attack on the statute here made is of a wholly different character. Its essentially political nature is at once made manifest by understanding that the assault which the contention here advanced makes it not on the tax as a tax, but on the State as a State. It is addressed to the framework and political character of the government by which the statute levying the tax was passed. It is the government, the political entity, which (reducing the case to its essence) is called to the bar of this court, not for the purpose of testing judicially some exercise of power assailed, on the ground that its exertion has injuriously affected the rights of an individual because of repugnancy to some constitutional limitation, but to demand of the State that it establish its right to exist as a State, republican in form. As the issues presented, in their very essence, are, and have long since by this court been, definitely determined to be political and governmental, and embraced within the scope of the powers conferred upon Congress, and not therefore within the reach of judicial power, it follows
5 that the case presented is not within our jurisdiction, and the writ of error must therefore be, and it is, dismissed for want of jurisdiction. Dismissed for want of jurisdiction.
COLEGROVE v. GREEN
Supreme Court of the United States 328 U.S. 549, 66 S. Ct. 1198, 90 L. Ed. 1432 (1946)
MR. JUSTICE FRANKFURTER announced the judgment of the Court and an opinion in which MR. JUSTICE REED and MR. JUSTICE BURTON concur. * * * [Appellants] are three qualified voters in Illinois districts which have much larger populations than other Illinois Congressional districts. They brought this suit against the Governor, the Secretary of State, and the Auditor of the State of Illinois, as members ex officio of the Illinois Primary Certifying Board, to restrain them, in effect, from taking proceedings for an election in November 1946, under the provisions of Illinois law governing Congressional districts. * * * We are of opinion that the petitioners ask of this Court what is beyond its competence to grant. This is one of those demands on judicial power which cannot be met by verbal fencing about “jurisdiction.” It must be resolved by considerations on the basis of which this Court, from time to time, has refused to intervene in controversies. It has refused to do so because due regard for the effective working of our Government revealed this issue to be of a peculiarly political nature and therefore not meet for judicial determination. This is not an action to recover for damage because of the discriminatory exclusion of a plaintiff from rights enjoyed by other citizens. The basis for the suit is not a private wrong, but a wrong suffered by Illinois as a polity. Compare Nixon v. Herndon, 273 U.S. 536 [(1927)] and Lane v. Wilson, 307 U.S. 268 [(1939)], with Giles v. Harris, 189 U.S. 475 [(1903)]. In effect this is an appeal to the federal courts to reconstruct the electoral process of Illinois in order that it may be adequately represented in the councils of the Nation. Because the Illinois legislature has failed to revise its Congressional Representative districts in order to reflect great changes, during more than a generation, in the distribution of its population, we are asked to do this, as it were, for Illinois. Of course no court can affirmatively re-map the Illinois districts so as to bring them more in conformity with the standards of fairness for a representative system. At best we could only declare the existing electoral system invalid. The result would be to leave Illinois undistricted and to bring into operation, if the Illinois legislature chose not to act, the choice of members for the House of Representatives on a state-wide ticket. The last stage may be worse than the first. The upshot of judicial action may defeat the vital political principle which led Congress, more than a hundred years ago, to require districting. This requirement, in the language of Chancellor Kent, “was recommended by the wisdom and justice of giving, as far as possible, to the local subdivisions of the people of each state, a due influence in the choice of representatives, so as not to leave the aggregate minority of the people in a state, though approaching perhaps to a majority, to be wholly overpowered by the combined action of the numerical majority, without any voice whatever in the national councils.” 1 Kent, Commentaries (12th ed., 1873) *230-31, n. (c). Assuming acquiescence on the part of the authorities of Illinois in the selection of its Representatives by a mode that defies the direction of Congress for selection by districts, the House of Representatives may not acquiesce. In the exercise of its power to judge the qualifications of its own members, the House may reject a delegation of Representatives-at-large.
6 * * * Nothing is clearer than that this controversy concerns matters that bring courts into immediate and active relations with party contests. From the determination of such issues this Court has traditionally held aloof. It is hostile to a democratic system to involve the judiciary in the politics of the people. And it is not less pernicious if such judicial intervention in an essentially political contest be dressed up in the abstract phrases of the law. The petitioners urge with great zeal that the conditions of which they complain are grave evils and offend public morality. The Constitution of the United States gives ample power to provide against these evils. But due regard for the Constitution as a viable system precludes judicial correction. Authority for dealing with such problems resides elsewhere. Article I, § 4 of the Constitution provides that “The Times, Places and Manner of holding Elections for . . . 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, . . .” The short of it is that the Constitution has conferred upon Congress exclusive authority to secure fair representation by the States in the popular House and left to that House determination whether States have fulfilled their responsibility. If Congress failed in exercising its powers, whereby standards of fairness are offended, the remedy ultimately lies with the people. Whether Congress faithfully discharges its duty or not, the subject has been committed to the exclusive control of Congress. An aspect of government from which the judiciary, in view of what is involved, has been excluded by the clear intention of the Constitution cannot be entered by the federal courts because Congress may have been in default in exacting from States obedience to its mandate. The one stark fact that emerges from a study of the history of Congressional apportionment is its embroilment in politics, in the sense of party contests and party interests. The Constitution enjoins upon Congress the duty of apportioning Representatives “among the several States . . . according to their respective Numbers, . . .” Article I, § 2. Yet, Congress has at times been heedless of this command and not apportioned according to the requirements of the Census. It never occurred to anyone that this Court could issue mandamus to compel Congress to perform its mandatory duty to apportion. * * * Until 1842 there was the greatest diversity among the States in the manner of choosing Representatives because Congress had made no requirement for districting. 5 Stat. 491. Congress then provided for the election of Representatives by districts. Strangely enough the power to do so was seriously questioned; it was still doubted by a Committee of Congress as late as 1901. In 1850 Congress dropped the requirement. 9 Stat. 428, 432-33. The Reapportionment Act of 1862 required that the districts be of contiguous territory. 12 Stat. 572. In 1872 Congress added the requirement of substantial equality of inhabitants. 17 Stat. 28. This was reinforced in 1911. 37 Stat. 13, 14. But the 1929 Act * * * dropped these requirements. 46 Stat. 21. Throughout our history, whatever may have been the controlling Apportionment Act, the most glaring disparities have prevailed as to the contours and the population of districts. * * * To sustain this action would cut very deep into the very being of Congress. Courts ought not to enter this political thicket. The remedy for unfairness in districting is to secure State legislatures that will apportion properly, or to invoke the ample powers of Congress. The Constitution has many commands that are not enforceable by courts because they clearly fall outside the conditions and purposes that circumscribe judicial action. Thus, “on Demand of the executive Authority,” Art. IV, § 2, of a State it is the duty of a sister State to deliver up a fugitive from justice. But the fulfillment of this duty cannot be judicially enforced. Kentucky v. Dennison, [65 U.S.] 24 How. 66 [(1860)]. The duty to see to it that the laws are faithfully executed cannot be brought under legal compulsion. Mississippi v. Johnson, [71 U.S.] 4 Wall. 475
7 [(1866)]. Violation of the great guaranty of a republican form of government in States cannot be challenged in the courts. Pacific States Telephone Co. v. Oregon, 223 U.S. 118 [(1912)] [p. XXX]. The Constitution has left the performance of many duties in our governmental scheme to depend on the fidelity of the executive and legislative action and, ultimately, on the vigilance of the people in exercising their political rights. Dismissal of the complaint is affirmed. MR. JUSTICE JACKSON took no part in the consideration or decision of this case. MR. JUSTICE RUTLEDGE. * * * [T]his complaint should be dismissed for [want of equity]. Assuming that the controversy is justiciable, I think the cause is of so delicate a character * * * that the jurisdiction should be exercised only in the most compelling circumstances. * * * If the constitutional provisions on which appellants rely give them the substantive rights they urge, other provisions qualify those rights in important ways by vesting large measures of control in the political subdivisions of the Government and the state. There is not, and could not be except abstractly, a right of absolute equality in voting. At best there could be only a rough approximation. And there is obviously considerable latitude for the bodies vested with those powers to exercise their judgment concerning how best to attain this, in full consistency with the Constitution. The right here is not absolute. And the cure sought may be worse than the disease. I think, therefore, the case is one in which the Court may properly, and should, decline to exercise its jurisdiction. Accordingly, the judgment should be affirmed and I join in that disposition of the cause. MR. JUSTICE BLACK, dissenting. The complaint alleges the following facts essential to the position I take: Petitioners, citizens and voters of Illinois, live in congressional election districts, the respective populations of which range from 612,000 to 914,000. Nineteen other congressional election districts have populations that range from 112,116 to 385,207. In seven of these districts the population is below 200,000. The Illinois Legislature established these districts in 1901 on the basis of the Census of 1900. The Federal Census of 1910, of 1920, of 1930, and of 1940, each showed a growth of population in Illinois and a substantial shift in the distribution of population among the districts established in 1901. But up to date, attempts to have the State Legislature reapportion congressional election districts so as more nearly to equalize their population have been unsuccessful. A contributing cause of this situation, according to petitioners, is the fact that the State Legislature is chosen on the basis of state election districts inequitably apportioned in a way similar to that of the 1901 congressional election districts. The implication is that the issues of state and congressional apportionment are thus so interdependent that it is to the interest of state legislators to perpetuate the inequitable apportionment of both state and congressional election districts. Prior to this proceeding a series of suits had been brought in the state courts challenging the State’s local and federal apportionment system. In all these cases the Supreme Court of the State had denied effective relief. In the present suit the complaint attacked the 1901 State Apportionment Act on the ground that it among other things violates Article I and the Fourteenth Amendment of the Constitution. Appellants claim that since they live in the heavily populated districts their vote is much less
8 effective than the vote of those living in a district which under the 1901 Act is also allowed to choose one Congressman, though its population is sometimes only one-ninth that of the heavily populated districts. Appellants contend that this reduction of the effectiveness of their vote is the result of a wilful legislative discrimination against them and thus amounts to a denial of the equal protection of the laws guaranteed by the Fourteenth Amendment. They further assert that this reduction of the effectiveness of their vote also violates the privileges and immunities clause of the Fourteenth Amendment in abridging their privilege as citizens of the United States to vote for Congressmen, a privilege guaranteed by Article I of the Constitution. They further contend that the State Apportionment Act directly violates Article I which guarantees that each citizen eligible to vote has a right to vote for Congressmen and to have his vote counted. The assertion here is that the right to have their vote counted is abridged unless that vote is given approximately equal weight to that of other citizens. * * * It is difficult for me to see why the 1901 State Apportionment Act does not deny petitioners equal protection of the laws. The failure of the Legislature to reapportion the congressional election districts for forty years, despite census figures indicating great changes in the distribution of the population, has resulted in election districts the populations of which range from 112,000 to 900,000. One of the petitioners lives in a district of more than 900,000 people. His vote is consequently much less effective than that of each of the citizens living in the district of 112,000. And such a gross inequality in the voting power of citizens irrefutably demonstrates a complete lack of effort to make an equitable apportionment. The 1901 State Apportionment Act if applied to the next election would thus result in a wholly indefensible discrimination against petitioners and all other voters in heavily populated districts. The equal protection clause of the Fourteenth Amendment forbids such discrimination. It does not permit the states to pick out certain qualified citizens or groups of citizens and deny them the right to vote at all. See Nixon v. Herndon, 273 U.S. [at] 541; Nixon v. Condon, 286 U.S. 73 [(1932)]. No one would deny that the equal protection clause would also prohibit a law that would expressly give certain citizens a half-vote and others a full vote. The probable effect of the 1901 State Apportionment Act in the coming election will be that certain citizens, and among them the appellants, will in some instances have votes only one-ninth as effective in choosing representatives to Congress as the votes of other citizens. Such discriminatory legislation seems to me exactly the kind that the equal protection clause was intended to prohibit. The 1901 State Apportionment Act in reducing the effectiveness of appellants’ votes abridges their privilege as citizens to vote for Congressmen and violates Article I of the Constitution. Article I provides that Congressmen “shall be . . . chosen . . . by the People of the several States.” It thus gives those qualified a right to vote and a right to have their vote counted. Ex parte Yarbrough, 110 U.S. 651 [(1884)]; United States v. Mosley, 238 U.S. 383 [(1915)]. This Court in order to prevent “an interference with the effective choice of the voters” has held that this right extends to primaries. United States v. Classic, 313 U.S. 299, 314 [(1941)]. While the Constitution contains no express provision requiring that Congressional election districts established by the States must contain approximately equal populations, the constitutionally guaranteed right to vote and the right to have one’s vote counted clearly imply the policy that state election systems, no matter what their form, should be designed to give approximately equal weight to each vote cast. To some extent this implication of Article I is expressly stated by § 2 of the Fourteenth Amendment which provides that “Representatives shall be apportioned among the several States according to their respective numbers . . .” The purpose of this requirement is obvious: It is to make the votes of the citizens of the several States equally
9 effective in the selection of members of Congress. It was intended to make illegal a nation-wide “rotten borough” system as between the States. The policy behind it is broader than that. It prohibits as well Congressional “rotten boroughs” within the States, such as the ones here involved. The policy is that which is laid down by all the Constitutional provisions regulating the election of members of the House of Representatives, including Article I which guarantees the right to vote and to have that vote effectively counted: All groups, classes, and individuals shall to the extent that it is practically feasible be given equal representation in the House of Representatives, which, in conjunction with the Senate, writes the laws affecting the life, liberty, and property of all the people. * * * Had Illinois passed an Act requiring that all of its twenty-six Congressmen be elected by the citizens of one county, it would clearly have amounted to a denial to the citizens of the other counties of their Constitutionally guaranteed right to vote. And I cannot imagine that an Act that would have apportioned twenty-five Congressmen to the State’s smallest county and one Congressman to all the others, would have been sustained by any Court. Such an Act would clearly have violated the constitutional policy of equal representation. The 1901 Apportionment Act here involved violates that policy in the same way. The policy with respect to federal elections laid down by the Constitution, while it does not mean that the courts can or should prescribe the precise methods to be followed by state legislatures and the invalidation of all Acts that do not embody those precise methods, does mean that state legislatures must make real efforts to bring about approximately equal representation of citizens in Congress. Here the legislature of Illinois has not done so. Whether that was due to negligence or was a wilful effort to deprive some citizens of an effective vote, the admitted result is that the Constitutional policy of equality of representation has been defeated. Under these circumstances it is the Court’s duty to invalidate the state law. It is contended, however, that a court of equity does not have the power, or even if it has the power, that it should not exercise it in this case. To do so, it is argued, would mean that the Court is entering the area of “political questions.” I cannot agree with that argument. * * * It is true that voting is a part of elections and that elections are “political.” But as this Court said in Nixon v. Herndon, supra, it is a mere “play on words” to refer to a controversy such as this as “political” in the sense that courts have nothing to do with protecting and vindicating the right of a voter to cast an effective ballot. * * * MR. JUSTICE DOUGLAS and MR. JUSTICE MURPHY join in this dissent.
GOMILLION v. LIGHTFOOT
Supreme Court of the United States 364 U.S. 339, 81 S. Ct. 125, 5 L. Ed. 2d 110 (1960)
MR. JUSTICE FRANKFURTER delivered the opinion of the Court [in which MR. CHIEF JUSTICE WARREN, MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, MR. JUSTICE CLARK, MR. JUSTICE HARLAN, MR. JUSTICE BRENNAN, and MR. JUSTICE STEWART join]. This litigation challenges the validity, under the United States Constitution, of Local Act No. 140, passed by the Legislature of Alabama in 1957, redefining the boundaries of the City of Tuskegee. Petitioners, Negro citizens of Alabama who were, at the time of this redistricting measure, residents of the City of Tuskegee, brought an action in the United States District Court for the Middle District of Alabama for a declaratory judgment that Act 140 is unconstitutional, and for an injunction to restrain the Mayor and officers of Tuskegee and the officials of Macon County, Alabama, from enforcing the Act against them and other Negroes similarly situated.
10 Petitioners’ claim is that enforcement of the statute, which alters the shape of Tuskegee from a square to an uncouth twenty-eight-sided figure, will constitute a discrimination against them in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the Constitution and will deny them the right to vote in defiance of the Fifteenth Amendment. * * * * * * The complaint, charging that Act 140 is a device to disenfranchise Negro citizens, alleges the following facts: Prior to Act 140 the City of Tuskegee was square in shape; the Act transformed it into a strangely irregular twenty-eight-sided figure as indicated in the diagram appended to this opinion. The essential inevitable effect of this redefinition of Tuskegee’s boundaries is to remove from the city all save four or five of its 400 Negro voters while not removing a single white voter or resident. The result of the Act is to deprive the Negro petitioners discriminatorily of the benefits of residence in Tuskegee, including, inter alia, the right to vote in municipal elections. These allegations, if proven, would abundantly establish that Act 140 was not an ordinary geographic redistricting measure even within familiar abuses of gerrymandering. If these allegations upon a trial remained uncontradicted or unqualified, the conclusion would be irresistible, tantamount for all practical purposes to a mathematical demonstration, that the legislation is solely concerned with segregating white and colored voters by fencing Negro citizens out of town so as to deprive them of their pre-existing municipal vote. It is difficult to appreciate what stands in the way of adjudging a statute having this inevitable effect invalid in light of the principles by which this Court must judge, and uniformly has judged, statutes that, howsoever speciously defined, obviously discriminate against colored citizens. “The [Fifteenth] Amendment nullifies sophisticated as well as simple-minded modes of discrimination.” Lane v. Wilson, 307 U.S. 268, 275 [(1939)]. The complaint amply alleges a claim of racial discrimination. Against this claim the respondents have never suggested, either in their brief or in oral argument, any countervailing municipal function which Act 140 is designed to serve. The respondents invoke generalities expressing the State’s unrestricted power—unlimited, that is, by the United States Constitution— to establish, destroy, or reorganize by contraction or expansion its political subdivisions, to wit, cities, counties, and other local units. We freely recognize the breadth and importance of this aspect of the State’s political power. To exalt this power into an absolute is to misconceive the reach and rule of this Court’s [prior] decisions[.] * * * This line of authority conclusively shows that the Court has never acknowledged that the States have power to do as they will with municipal corporations regardless of consequences. Legislative control of municipalities, no less than other state power, lies within the scope of relevant limitations imposed by the United States Constitution. * * * The opposite conclusion, urged upon us by respondents, would sanction the achievement by a State of any impairment of voting rights whatever so long as it was cloaked in the garb of the realignment of political subdivisions. “It is inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence.” Frost & Frost Trucking Co. v. Railroad Commission of California, 271 U.S. 583, 594 [(1926)]. The respondents find another barrier to the trial of this case in Colegrove v. Green, 328 U.S. 549 [(1946)] [p. XXX]. * * * That case involved a complaint of discriminatory apportionment of congressional districts. The appellants in Colegrove complained only of a dilution of the strength of their votes as a result of legislative inaction over a course of many years. The petitioners here complain that affirmative legislative action deprives them of their votes and the consequent advantages that the ballot affords. When a legislature thus singles out a readily isolated segment
11 of a racial minority for special discriminatory treatment, it violates the Fifteenth Amendment. In no case involving unequal weight in voting distribution that has come before the Court did the decision sanction a differentiation on racial lines whereby approval was given to unequivocal withdrawal of the vote solely from colored citizens. Apart from all else, these considerations lift this controversy out of the so-called “political” arena and into the conventional sphere of constitutional litigation. In sum, as Mr. Justice Holmes remarked, when dealing with a related situation, in Nixon v. Herndon, 273 U.S. 536, 540 [(1927)], “Of course the petition concerns political action,” but “The objection that the subject-matter of the suit is political is little more than a play upon words.” A statute which is alleged to have worked unconstitutional deprivations of petitioners’ rights is not immune to attack simply because the mechanism employed by the legislature is a redefinition of municipal boundaries. According to the allegations here made, the Alabama Legislature has not merely redrawn the Tuskegee city limits with incidental inconvenience to the petitioners; it is more accurate to say that it has deprived the petitioners of the municipal franchise and consequent rights and to that end it has incidentally changed the city’s boundaries. While in form this is merely an act redefining metes and bounds, if the allegations are established, the inescapable human effect of this essay in geometry and geography is to despoil colored citizens, and only colored citizens, of their theretofore enjoyed voting rights. That was no Colegrove v. Green. When a State exercises power wholly within the domain of state interest, it is insulated from federal judicial review. But such insulation is not carried over when state power is used as an instrument for circumventing a federally protected right. * * * For these reasons, the principal conclusions of the District Court and the Court of Appeals are clearly erroneous and the decision below must be Reversed. MR. JUSTICE DOUGLAS, while joining the opinion of the Court, adheres to the dissents in Colegrove v. Green and South v. Peters, 339 U.S. 276 [(1950)]. APPENDIX TO OPINION OF THE COURT CHART SHOWING TUSKEGEE, ALABAMA, BEFORE AND AFTER ACT 140
MR. JUSTICE WHITTAKER, concurring. I concur in the Court’s judgment, but not in the whole of its opinion. It seems to me that the decision should be rested not on the Fifteenth Amendment, but rather on the Equal Protection Clause of the Fourteenth Amendment to the Constitution. I am doubtful that the averments of the complaint, taken for present purposes to be true, show a purpose by Act No. 140 to abridge petitioners’ “right . . . to vote,” in the Fifteenth Amendment sense. It seems to me that the “right . . . to vote” that is guaranteed by the Fifteenth Amendment is but the same right to vote as is enjoyed by all others within the same election precinct, ward or other political division. And, inasmuch as no one has the right to vote in a political division, or in a local election concerning only an area in which he does not reside, it would seem to follow that one’s right to vote in Division A is not abridged by a redistricting that places his residence in Division B if he there enjoys the same voting privileges as all others in that Division, even though the redistricting was done by the State for the purpose of placing a racial group of citizens in Division B rather than A. But it does seem clear to me that accomplishment of a State’s purpose—to use the Court’s phrase—of “fencing Negro citizens out of” Division A and into Division B is an unlawful segregation of races of citizens, in violation of the Equal Protection Clause of the Fourteenth Amendment, Brown v. Board of Education, 347 U.S. 483 [(1954)]; Cooper v. Aaron, 358 U.S. 1 [(1959)]; and, as stated, I would think the decision should be rested on that ground—which, incidentally, clearly would not involve, just as the cited cases did not involve, the Colegrove problem.
13 Notes and Questions 1. Does or should Luther v. Borden stand for the proposition that all Guarantee Clause claims are non-justiciable in federal court? If so, why weren’t Pacific States and Colegrove disposed of in short opinions citing Luther? Are the former cases more difficult to resolve than Luther? Is it relevant to the more recent cases if and how Congress (and perhaps other political actors) might consider and resolve issues related to Guarantee Clause claims? 2. Justice Frankfurter’s opinion for a plurality in Colegrove is a classic exposition of the limits of federal judicial power. Did he adequately respond to Justice Black’s dissent that the Equal Protection claims were being ignored? Conversely, did Justice Black fully appreciate the apparent dangers of courts entering the “political thicket,” as described by Justice Frankfurter? 3. In light of Colegrove, is the unanimous result in Gomillion—or the fact that the majority opinion was written by Justice Frankfurter—surprising? How did the Court distinguish Colegrove? 4. In 1947, immediately after Colegrove, the governor of Illinois recommended a reapportionment. The state legislature not only reapportioned the electoral districts in that year, but did so again in 1951. Should that information be relevant to us in interpreting the politicalquestion doctrine? 5. Justice Whittaker preferred to rest Gomillion on the Fourteenth Amendment rather than the Fifteenth. Was he right to do so? How were the plaintiffs denied the right to vote? How were they denied the equal protection of the laws? Should grounding such claims in the Fourteenth Amendment ameliorate “the Colegrove problem”? Consider your answer as you read the next section.
C. “WELL DEVELOPED AND FAMILIAR” STANDARDS OF EQUAL PROTECTION
The cases in the prior section illustrate that litigants and judges engaged in various efforts— some successful, some not—to circumvent the limits of Luther and other Guarantee Clause cases through explicit reliance on other constitutional provisions, particularly the Equal Protection Clause of the Fourteenth Amendment. But the jurisprudential shift to the Equal Protection Clause raised complications of its own, and did not automatically dispose of concerns raised by the political question doctrine, as the following cases show.
BAKER v. CARR
Supreme Court of the United States 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962)
MR. JUSTICE BRENNAN delivered the opinion of the Court [in which MR. CHIEF JUSTICE WARREN, MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, MR. JUSTICE CLARK, MR. JUSTICE STEWART and MR. JUSTICE GOLDBERG join]. * * * [Plaintiffs, Tennessee voters, brought suit alleging that the apportionment of state-legislative districts debased their votes in violation of the Equal Protection Clause.] The General Assembly of Tennessee consists of the Senate with 33 members and the House of Representatives with 99 members. * * * [The Tennessee Constitution requires redistricting every ten years according to] the total number of qualified voters resident in the respective counties, subject to only minor qualifications. Decennial reapportionment in compliance with the constitutional scheme was effected by the General Assembly each decade from 1871 to 1901.
14 * * * In the more than 60 years since [passage of the 1901 Apportionment Act, however], all proposals in both Houses of the General Assembly for reapportionment have failed to pass. Between 1901 and 1961, Tennessee has experienced substantial growth and redistribution of her population. In 1901 the population was 2,020,616, of whom 487,380 were eligible to vote. The 1960 Federal Census reports the State’s population at 3,567,089, of whom 2,092,891 are eligible to vote. The relative standings of the counties in terms of qualified voters have changed significantly. It is primarily the continued application of the 1901 Apportionment Act to this shifted and enlarged voting population which gives rise to the present controversy. Indeed, the complaint alleges that the 1901 statute, even as of the time of its passage, “made no apportionment of Representatives and Senators in accordance with the constitutional formula . . . , but instead arbitrarily and capriciously apportioned representatives in the Senate and House without reference . . . to any logical or reasonable formula whatever.” It is further alleged that “because of the population changes since 1900, and the failure of the Legislature to reapportion itself since 1901,” the 1901 statute became “unconstitutional and obsolete.” Appellants also argue that, because of the composition of the legislature effected by the 1901 Apportionment Act, redress in the form of a state constitutional amendment to change the entire mechanism for reapportioning, or any other change short of that, is difficult or impossible. 14 The complaint concludes that “these plaintiffs and others similarly situated, are denied the equal protection of the laws accorded them by the Fourteenth Amendment to the Constitution of the United States by virtue of the debasement of their votes.” They seek a declaration that the 1901 statute is unconstitutional and an injunction restraining the appellees from acting to conduct any further elections under it. They also pray that unless and until the General Assembly enacts a valid reapportionment, the District Court should either decree a reapportionment by mathematical application of the Tennessee constitutional formulae to the most recent Federal Census figures, or direct the appellees to conduct legislative elections, primary and general, at large. * * * In holding that the subject matter of this suit was not justiciable, the District Court relied on Colegrove v. Green, [328 U.S. 549 (1946)] [p. XXX], and subsequent per curiam cases. * * * We understand the District Court to have read the cited cases as compelling the conclusion that since the appellants sought to have a legislative apportionment held unconstitutional, their suit presented a “political question” and was therefore nonjusticiable. We hold that this challenge to an apportionment presents no nonjusticiable “political question.” The cited cases do not hold the contrary. * * * We hold that the claim pleaded here neither rests upon nor implicates the Guaranty Clause and that its justiciability is therefore not foreclosed by our decisions of cases involving that clause. * * * [Our review of “political question” cases reveals that] it is the relationship between
The appellants claim that no General Assembly constituted according to the 1901 Act will submit reapportionment proposals either to the people or to a Constitutional Convention. There is no provision for popular initiative in Tennessee. Amendments proposed in the Senate or House must first be approved by a majority of all members of each House and again by two-thirds of the members in the General Assembly next chosen. The proposals are then submitted to the people at the next general election in which a Governor is to be chosen. Alternatively, the legislature may submit to the people at any general election the question of calling a convention to consider specified proposals. Such as are adopted at a convention do not, however, become effective unless approved by a majority of the qualified voters voting separately on each proposed change or amendment at an election fixed by the convention. Conventions shall not be held oftener than once in six years. [Legislation in 1951 and 1957] provided that delegates to the 1953 and 1959 conventions were to be chosen from the counties and floterial districts just as are members of the State House of Representatives. * * *
15 the judiciary and the coordinate branches of the Federal Government, and not the federal judiciary’s relationship to the States, which gives rise to the “political question.” We have said that “In determining whether a question falls within [the political question] category, the appropriateness under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for a judicial determination are dominant considerations.” Coleman v. Miller, 307 U.S. 433, 454-455 [(1939)]. The nonjusticiability of a political question is primarily a function of the separation of powers. Much confusion results from the capacity of the “political question” label to obscure the need for caseby-case inquiry. Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution. *** It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of the separation of powers. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for non-justiciability on the ground of a political question’s presence. The doctrine of which we treat is one of “political questions,” not one of “political cases.” The courts cannot reject as “no law suit” a bona fide controversy as to whether some action denominated “political” exceeds constitutional authority. The cases we have reviewed show the necessity for discriminating inquiry into the precise facts and posture of the particular case, and the impossibility of resolution by any semantic cataloguing. But it is argued that this case shares the characteristics of decisions that constitute a category not yet considered, cases concerning the Constitution’s guaranty, in Art. IV, § 4, of a republican form of government. A conclusion as to whether the case at bar does present a political question cannot be confidently reached until we have considered those cases with special care. We shall discover that Guaranty Clause claims involve those elements which define a “political question,” and for that reason and no other, they are nonjusticiable. In particular, we shall discover that the nonjusticiability of such claims has nothing to do with their touching upon matters of state governmental organization. * * * [The Court discussed Luther v. Borden, Pacific States, and other cases.] We come, finally, to the ultimate inquiry whether our precedents as to what constitutes a nonjusticiable “political question” bring the case before us under the umbrella of that doctrine. A natural beginning is to note whether any of the common characteristics which we have been able to identify and label descriptively are present. We find none: The question here is the consistency of state action with the Federal Constitution. We have no question decided, or to be decided, by a political branch of government coequal with this Court. Nor do we risk embarrassment of our
16 government abroad, or grave disturbance at home if we take issue with Tennessee as to the constitutionality of her action here challenged. Nor need the appellants, in order to succeed in this action, ask the Court to enter upon policy determinations for which judicially manageable standards are lacking. Judicial standards under the Equal Protection Clause are well developed and familiar, and it has been open to courts since the enactment of the Fourteenth Amendment to determine, if on the particular facts they must, that a discrimination reflects no policy, but simply arbitrary and capricious action. This case does, in one sense, involve the allocation of political power within a State, and the appellants might conceivably have added a claim under the Guaranty Clause. Of course, as we have seen, any reliance on that clause would be futile. But because any reliance on the Guaranty Clause could not have succeeded it does not follow that appellants may not be heard on the equal protection claim which in fact they tender. True, it must be clear that the Fourteenth Amendment claim is not so enmeshed with those political question elements which render Guaranty Clause claims nonjusticiable as actually to present a political question itself. But we have found that not to be the case here. * * * We conclude then that the nonjusticiability of claims resting on the Guaranty Clause which arises from their embodiment of questions that were thought “political,” can have no bearing upon the justiciability of the equal protection claim presented in this case. Finally, we emphasize that it is the involvement in Guaranty Clause claims of the elements thought to define “political questions,” and no other feature, which could render them nonjusticiable. Specifically, we have said that such claims are not held nonjusticiable because they touch matters of state governmental organization. * * * When challenges to state action respecting matters of “the administration of the affairs of the State and the officers through whom they are conducted” have rested on claims of constitutional deprivation which are amenable to judicial correction, this Court has acted upon its view of the merits of the claim. For example, * * * only last Term, in Gomillion v. Lightfoot, 364 U.S. 339 [(1960)] [p. XXX], we applied the Fifteenth Amendment to strike down a redrafting of municipal boundaries which effected a discriminatory impairment of voting rights, in the face of what a majority of the Court of Appeals thought to be a sweeping commitment to state legislatures of the power to draw and redraw such boundaries. * * * We conclude that the complaint’s allegations of a denial of equal protection present a justiciable constitutional cause of action upon which appellants are entitled to a trial and a decision. The right asserted is within the reach of judicial protection under the Fourteenth Amendment. The judgment of the District Court is reversed and the cause is remanded for further proceedings consistent with this opinion. Reversed and remanded. MR. JUSTICE WHITTAKER did not participate in the decision of this case.
MR. JUSTICE DOUGLAS, concurring. While I join the opinion of the Court and, like the Court, do not reach the merits, a word of explanation is necessary.15 I put to one side the problems of “political” questions involving the distribution of power between this Court, the Congress, and the Chief Executive. We have here a phase of the recurring problem of the relation of the federal courts to state agencies. More particularly, the question is the extent to which a State may weight one person’s vote more heavily than it does another’s. * * * With the exception of Colegrove v. Green; MacDougall v. Green, 335 U.S. 281 [(1948)]; South v. Peters, 339 U.S. 276 [(1950)], and the decisions they spawned, the Court has never thought that protection of voting rights was beyond judicial cognizance. Today’s treatment of those cases removes the only impediment to judicial cognizance of the claims stated in the present complaint. The justiciability of the present claims being established, any relief accorded can be fashioned in the light of well-known principles of equity. MR. JUSTICE CLARK, concurring. * * * I believe it can be shown that this case is distinguishable from earlier cases dealing with the distribution of political power by a State, that a patent violation of the Equal Protection Clause of the United States Constitution has been shown, and that an appropriate remedy may be formulated. * * * The controlling facts cannot be disputed. It appears from the record that 37% of the voters of Tennessee elect 20 of the 33 Senators while 40% of the voters elect 60 of the 99 members of the House. But this might not on its face be an “invidious discrimination,” Williamson v. Lee Optical of Oklahoma, 348 U.S. 483, 489 (1955), for a “statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.” It is true that the apportionment policy incorporated in Tennessee’s Constitution, i.e., statewide numerical equality of representation with certain minor qualifications, is a rational one. On a county-by-county comparison a districting plan based thereon naturally will have disparities in representation due to the qualifications. But this to my mind does not raise constitutional problems, for the overall policy is reasonable. However, the root of the trouble is not in Tennessee’s Constitution, for admittedly its policy has not been followed. The discrimination lies in the action of Tennessee’s Assembly in allocating legislative seats to counties or districts created by it. Try as one may, Tennessee’s apportionment just cannot be made to fit the pattern cut by its Constitution. * * * The frequency and magnitude of the inequalities in the present districting admit of no policy whatever. * * * [The] apportionment picture in Tennessee is a topsy-turvical of gigantic proportions. This is not to say that some of the disparity cannot be explained, but when the entire table is examined—comparing the voting strength of counties of like population as well as contrasting that of the smaller with the larger counties—it leaves but one conclusion, namely that Tennessee’s apportionment is a crazy quilt without rational basis. *** The truth is that—although this case has been here for two years and has had over six hours’ argument (three times the ordinary case) and has been most carefully considered over and over
I feel strongly that many of the cases cited by the Court and involving so-called “political” questions were wrongly decided. In joining the opinion, I do not approve those decisions but only construe the Court’s opinion in this case as stating an accurate historical account of what the prior cases have held.
again by us in Conference and individually—no one, not even the State nor the dissenters, has come up with any rational basis for Tennessee’s apportionment statute. No one * * * contends that mathematical equality among voters is required by the Equal Protection Clause. But certainly there must be some rational design to a State’s districting. The discrimination here does not fit any pattern—as I have said, it is but a crazy quilt. My Brother HARLAN contends that other proposed apportionment plans contain disparities. Instead of chasing those rabbits he should first pause long enough to meet appellants’ proof of discrimination by showing that in fact the present plan follows a rational policy. Not being able to do this, he merely counters with such generalities as “classic legislative judgment,” no “significant discrepancy,” and “de minimis departures.” I submit that even a casual glance at the present apportionment picture shows these conclusions to be entirely fanciful. If present representation has a policy at all, it is to maintain the status quo of invidious discrimination at any cost. * * * Although I find the Tennessee apportionment statute offends the Equal Protection Clause, I would not consider intervention by this Court into so delicate a field if there were any other relief available to the people of Tennessee. But the majority of the people of Tennessee have no “practical opportunities for exerting their political weight at the polls” to correct the existing “invidious discrimination.” Tennessee has no initiative and referendum. I have searched diligently for other “practical opportunities” present under the law. I find none other than through the federal courts. The majority of the voters have been caught up in a legislative strait jacket. Tennessee has an “informed, civically militant electorate” and “an aroused popular conscience,” but it does not sear “the conscience of the people’s representatives.” This is because the legislative policy has riveted the present seats in the Assembly to their respective constituencies, and by the votes of their incumbents a reapportionment of any kind is prevented. The people have been rebuffed at the hands of the Assembly; they have tried the constitutional convention route, but since the call must originate in the Assembly it, too, has been fruitless. They have tried Tennessee courts with the same result,9 and Governors have fought the tide only to flounder. It is said that there is recourse in Congress and perhaps that may be, but from a practical standpoint this is without substance. To date Congress has never undertaken such a task in any State. We therefore must conclude that the people of Tennessee are stymied and without judicial intervention will be saddled with the present discrimination in the affairs of their state government. * * * MR. JUSTICE STEWART, concurring. The separate writings of my dissenting and concurring Brothers stray so far from the subject of today’s decision as to convey, I think, a distressingly inaccurate impression of what the Court decides. For that reason, I think it appropriate, in joining the opinion of the Court, to emphasize in a few words what the opinion does and does not say. * * * The complaint in this case asserts that Tennessee’s system of apportionment is utterly arbitrary—without any possible justification in rationality. The District Court did not reach the merits of that claim, and this Court quite properly expresses no view on the subject. Contrary to the suggestion of my Brother HARLAN, the Court does not say or imply that “state legislatures must be so structured as to reflect with approximate equality the voice of every voter.” The Court does not say or imply that there is anything in the Federal Constitution “to prevent a State, acting not irrationally, from choosing any electoral legislative structure it thinks best suited to the
It is interesting to note that state judges often rest their decisions on the ground that this Court has precluded adjudication of the federal claim.
interests, temper, and customs of its people.” And contrary to the suggestion of my Brother DOUGLAS, the Court most assuredly does not decide the question, “may a State weight the vote of one county or one district more heavily than it weights the vote in another?” * * * MR. JUSTICE FRANKFURTER, whom MR. JUSTICE HARLAN joins, dissenting. The Court today reverses a uniform course of decision established by a dozen cases, including one by which the very claim now sustained was unanimously rejected only five years ago. The impressive body of rulings thus cast aside reflected the equally uniform course of our political history regarding the relationship between population and legislative representation—a wholly different matter from denial of the franchise to individuals because of race, color, religion or sex. Such a massive repudiation of the experience of our whole past in asserting destructively novel judicial power demands a detailed analysis of the role of this Court in our constitutional scheme. Disregard of inherent limits in the effective exercise of the Court’s “judicial Power” not only presages the futility of judicial intervention in the essentially political conflict of forces by which the relation between population and representation has time out of mind been and now is determined. It may well impair the Court’s position as the ultimate organ of “the supreme Law of the Land” in that vast range of legal problems, often strongly entangled in popular feeling, on which this Court must pronounce. The Court’s authority—possessed of neither the purse nor the sword—ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the Court’s complete detachment, in fact and in appearance, from political entanglements and by abstention from injecting itself into the clash of political forces in political settlements. A hypothetical claim resting on abstract assumptions is now for the first time made the basis for affording illusory relief for a particular evil even though it foreshadows deeper and more pervasive difficulties in consequence. The claim is hypothetical and the assumptions are abstract because the Court does not vouchsafe the lower courts—state and federal—guidelines for formulating specific, definite, wholly unprecedented remedies for the inevitable litigations that today’s umbrageous disposition is bound to stimulate in connection with politically motivated reapportionments in so many States. In such a setting, to promulgate jurisdiction in the abstract is meaningless. It is as devoid of reality as “a brooding omnipresence in the sky,” for it conveys no intimation what relief, if any, a District Court is capable of affording that would not invite legislatures to play ducks and drakes with the judiciary. For this Court to direct the District Court to enforce a claim to which the Court has over the years consistently found itself required to deny legal enforcement and at the same time to find it necessary to withhold any guidance to the lower court how to enforce this turnabout, new legal claim, manifests an odd—indeed an esoteric —conception of judicial propriety. * * * Even assuming the indispensable intellectual disinterestedness on the part of judges in such matters, they do not have accepted legal standards or criteria or even reliable analogies to draw upon for making judicial judgments. To charge courts with the task of accommodating the incommensurable factors of policy that underlie these mathematical puzzles is to attribute, however flatteringly, omnicompetence to judges. * * * We were soothingly told at the bar of this Court that we need not worry about the kind of remedy a court could effectively fashion once the abstract constitutional right to have courts pass on a state-wide system of electoral districting is recognized as a matter of judicial rhetoric, because legislatures would heed the Court’s admonition. This is not only a euphoric hope. It implies a sorry confession of judicial impotence in place of a frank acknowledgment that there is not under our Constitution a judicial remedy for every political mischief, for every undesirable
exercise of legislative power. The Framers carefully and with deliberate forethought refused so to enthrone the judiciary. In this situation, as in others of like nature, appeal for relief does not belong here. Appeal must be to an informed, civically militant electorate. In a democratic society like ours, relief must come through an aroused popular conscience that sears the conscience of the people’s representatives. In any event there is nothing judicially more unseemly nor more self-defeating than for this Court to make in terrorem pronouncements, to indulge in merely empty rhetoric, sounding a word of promise to the ear, sure to be disappointing to the hope. * * * The Colegrove doctrine, in the form in which repeated decisions have settled it, was not an innovation. It represents long judicial thought and experience. From its earliest opinions this Court has consistently recognized a class of controversies which do not lend themselves to judicial standards and judicial remedies. To classify the various instances as “political questions” is rather a form of stating this conclusion than revealing of analysis.10 * * * The Court has been particularly unwilling to intervene in matters concerning the structure and organization of the political institutions of the States. The abstention from judicial entry into such areas has been greater even than that which marks the Court’s ordinary approach to issues of state power challenged under broad federal guarantees. * * * The cases involving Negro disfranchisement are no exception to the principle of avoiding federal judicial intervention into matters of state government in the absence of an explicit and clear constitutional imperative. For here the controlling command of Supreme Law is plain and unequivocal. An end of discrimination against the Negro was the compelling motive of the Civil War Amendments. The Fifteenth expresses this in terms, and it is no less true of the Equal Protection Clause of the Fourteenth. * * * The influence of these converging considerations—the caution not to undertake decision where standards meet for judicial judgment are lacking, the reluctance to interfere with matters of state government in the absence of an unquestionable and effectively enforceable mandate, the unwillingness to make courts arbiters of the broad issues of political organization historically committed to other institutions and for whose adjustment the judicial process is ill-adapted—has been decisive of the settled line of cases, reaching back more than a century, which holds that Art. IV, § 4, of the Constitution, guaranteeing to the States “a Republican Form of Government,” is not enforceable through the courts. * * * The subject was fully considered in Pacific States Telephone & Telegraph Co. v. Oregon, 223 U.S. 118 [(1912)] [p. XXX], in which the Court dismissed for want of jurisdiction a writ of error attacking a state license tax statute enacted by the initiative, on the claim that this mode of legislation was inconsistent with a Republican Form of Government and violated the Equal Protection Clause and other federal guarantees. * * * The present case involves all of the elements that have made the Guarantee Clause cases nonjusticiable. It is, in effect, a Guarantee Clause claim masquerading under a different label. But it cannot make the case more fit for judicial action that appellants invoke the Fourteenth Amendment rather than Art. IV, § 4, where, in fact, the gist of their complaint is the same— unless it can be found that the Fourteenth Amendment speaks with greater particularity to their situation. * * * But where judicial competence is wanting, it cannot be created by invoking one clause of the Constitution rather than another. When what was essentially a Guarantee Clause claim was sought to be laid, as well, under the Equal Protection Clause in Pacific States Telephone & Telegraph Co. v. Oregon, the Court had no difficulty in “dispelling any mere confusion resulting from forms of expression, and considering the substance of things . . . .” ***
See Bickel, Foreword: The Passive Virtues, 75 Harv. L. Rev. 40, 45 et seq. (1961).
What, then, is this question of legislative apportionment? Appellants invoke the right to vote and to have their votes counted. But they are permitted to vote and their votes are counted. They go to the polls, they cast their ballots, they send their representatives to the state councils. Their complaint is simply that the representatives are not sufficiently numerous or powerful—in short, that Tennessee has adopted a basis of representation with which they are dissatisfied. Talk of “debasement” or “dilution” is circular talk. One cannot speak of “debasement” or “dilution” of the value of a vote until there is first defined a standard of reference as to what a vote should be worth. What is actually asked of the Court in this case is to choose among competing bases of representation—ultimately, really, among competing theories of political philosophy—in order to establish an appropriate frame of government for the State of Tennessee and thereby for all the States of the Union. In such a matter, abstract analogies which ignore the facts of history deal in unrealities; they betray reason. This is not a case in which a State has, through a device however oblique and sophisticated, denied Negroes or Jews or redheaded persons a vote, or given them only a third or a sixth of a vote. That was Gomillion v. Lightfoot. What Tennessee illustrates is an old and still widespread method of representation—representation by local geographical division, only in part respective of population—in preference to others, others, forsooth, more appealing. Appellants contest this choice and seek to make this Court the arbiter of the disagreement. They would make the Equal Protection Clause the charter of adjudication, asserting that the equality which it guarantees comports, if not the assurance of equal weight to every voter’s vote, at least the basic conception that representation ought to be proportionate to population, a standard by reference to which the reasonableness of apportionment plans may be judged. To find such a political conception legally enforceable in the broad and unspecific guarantee of equal protection is to rewrite the Constitution. See Luther v. Borden. Certainly, “equal protection” is no more secure a foundation for judicial judgment of the permissibility of varying forms of representative government than is “Republican Form.” Indeed since “equal protection of the laws” can only mean an equality of persons standing in the same relation to whatever governmental action is challenged, the determination whether treatment is equal presupposes a determination concerning the nature of the relationship. This, with respect to apportionment, means an inquiry into the theoretic base of representation in an acceptably republican state. For a court could not determine the equal-protection issue without in fact first determining the Republican-Form issue, simply because what is reasonable for equal-protection purposes will depend upon what frame of government, basically, is allowed. To divorce “equal protection” from “Republican Form” is to talk about half a question. The notion that representation proportioned to the geographic spread of population is so universally accepted as a necessary element of equality between man and man that it must be taken to be the standard of a political equality preserved by the Fourteenth Amendment—that it is, in appellants’ words “the basic principle of representative government”—is, to put it bluntly, not true. However desirable and however desired by some among the great political thinkers and framers of our government, it has never been generally practiced, today or in the past. It was not the English system, it was not the colonial system, it was not the system chosen for the national government by the Constitution, it was not the system exclusively or even predominantly practiced by the States at the time of adoption of the Fourteenth Amendment, it is not predominantly practiced by the States today. Unless judges, the judges of this Court, are to make their private views of political wisdom the measure of the Constitution—views which in all honesty cannot but give the appearance, if not reflect the reality, of involvement with the
business of partisan politics so inescapably a part of apportionment controversies—the Fourteenth Amendment, “itself a historical product,” provides no guide for judicial oversight of the representation problem. * * * [JUSTICE FRANKFURTER followed with a detailed historical review of legislative apportionment in Great Britain, in the 13 Colonies, and in the States demonstrating, as he saw it, the many different approaches to the issue.] * * * Detailed recent studies are available to describe the present-day constitutional and statutory status of apportionment in the fifty States. They demonstrate a decided twentiethcentury trend away from population as the exclusive base of representation. Today, only a dozen state constitutions provide for periodic legislative reapportionment of both houses by a substantially unqualified application of the population standard, and only about a dozen more prescribe such reapportionment for even a single chamber. * * * More than twenty States now guarantee each county at least one seat in one of their houses regardless of population, and in nine others county or town units are given equal representation in one legislative branch, whatever the number of each unit’s inhabitants. Of course, numerically considered, “These provisions invariably result in over-representation of the least populated areas. . . .” And in an effort to curb and political dominance of metropolitan regions, at least ten States now limit the maximum entitlement of any single county (or, in some cases, city) in one legislative house— another source of substantial numerical disproportion. * * * The stark fact is that if among the numerous widely varying principles and practices that control state legislative apportionment today there is any generally prevailing feature, that feature is geographic inequality in relation to the population standard. Examples could be endlessly multiplied. In New Jersey, counties of thirty-five thousand and of more than nine hundred and five thousand inhabitants respectively each have a single senator. Representative districts in Minnesota range from 7,290 inhabitants to 107,246 inhabitants. Ratios of senatorial representation in California vary as much as two hundred and ninety-seven to one. In Oklahoma, the range is ten to one for House constituencies and roughly sixteen to one for Senate constituencies. Colebrook, Connecticut—population 592—elects two House representatives; Hartford—population 177,397—also elects two. The first, third and fifth of these examples are the products of constitutional provisions which subordinate population to regional considerations in apportionment; the second is the result of legislative inaction; the fourth derives from both constitutional and legislative sources. A survey made in 1955, in sum, reveals that less than thirty percent of the population inhabit districts sufficient to elect a House majority in thirteen States and a Senate majority in nineteen States. These figures show more than individual variations from a generally accepted standard of electoral equality. They show that there is not—as there has never been—a standard by which the place of equality as a factor in apportionment can be measured. Manifestly, the Equal Protection Clause supplies no clearer guide for judicial examination of apportionment methods than would the Guarantee Clause itself. Apportionment, by its character, is a subject of extraordinary complexity, involving—even after the fundamental theoretical issues concerning what is to be represented in a representative legislature have been fought out or compromised—considerations of geography, demography, electoral convenience, economic and social cohesions or divergencies among particular local groups, communications, the practical effects of political institutions like the lobby and the city machine, ancient traditions and ties of settled usage, respect for proven incumbents of long experience and senior status, mathematical mechanics, censuses compiling relevant data, and a host of others. Legislative
responses throughout the country to the reapportionment demands of the 1960 Census have glaringly confirmed that these are not factors that lend themselves to evaluations of a nature that are the staple of judicial determinations or for which judges are equipped to adjudicate by legal training or experience or native wit. And this is the more so true because in every strand of this complicated, intricate web of values meet the contending forces of partisan politics. The practical significance of apportionment is that the next election results may differ because of it. Apportionment battles are overwhelmingly party or intra-party contests. It will add a virulent source of friction and tension in federal-state relations to embroil the federal judiciary in them. *** Dissenting opinion of MR. JUSTICE HARLAN, whom MR. JUSTICE FRANKFURTER, joins. * * * In the last analysis, what lies at the core of this controversy is a difference of opinion as to the function of representative government. It is surely beyond argument that those who have the responsibility for devising a system of representation may permissibly consider that factors other than bare numbers should be taken into account. The existence of the United States Senate is proof enough of that. To consider that we may ignore the Tennessee Legislature’s judgment in this instance because that body was the product of an asymmetrical electoral apportionment would in effect be to assume the very conclusion here disputed. Hence we must accept the present form of the Tennessee Legislature as the embodiment of the State’s choice, or, more realistically, its compromise, between competing political philosophies. The federal courts have not been empowered by the Equal Protection Clause to judge whether this resolution of the State’s internal political conflict is desirable or undesirable, wise or unwise. * * * The claim that Tennessee’s system of apportionment is so unreasonable as to amount to a capricious classification of voting strength stands up no better under dispassionate analysis. The Court has said time and again that the Equal Protection Clause does not demand of state enactments either mathematical identity or rigid equality. * * * It is not inequality alone that calls for a holding of unconstitutionality; only if the inequality is based on an impermissible standard may this Court condemn it. What then is the basis for the claim made in this case that the distribution of state senators and representatives is the product of capriciousness or of some constitutionally prohibited policy? It is not that Tennessee has arranged its electoral districts with a deliberate purpose to dilute the voting strength of one race, cf. Gomillion v. Lightfoot, or that some religious group is intentionally underrepresented. Nor is it a charge that the legislature has indulged in sheer caprice by allotting representatives to each county on the basis of a throw of the dice, or of some other determinant bearing no rational relation to the question of apportionment. Rather, the claim is that the State Legislature has unreasonably retained substantially the same allocation of senators and representatives as was established by statute in 1901, refusing to recognize the great shift in the population balance between urban and rural communities that has occurred in the meantime. * * * A Federal District Court is asked to say that the passage of time has rendered the 1901 apportionment obsolete to the point where its continuance becomes vulnerable under the Fourteenth Amendment. But is not this matter one that involves a classic legislative judgment? Surely it lies within the province of a state legislature to conclude that an existing allocation of senators and representatives constitutes a desirable balance of geographical and demographical representation, or that in the interest of stability of government it would be best to defer for some further time the redistribution of seats in the state legislature.
Indeed, I would hardly think it unconstitutional if a state legislature’s expressed reason for establishing or maintaining an electoral imbalance between its rural and urban population were to protect the State’s agricultural interests from the sheer weight of numbers of those residing in its cities. A State may, after all, take account of the interests of its rural population in the distribution of tax burdens, and recognition of the special problems of agricultural interests has repeatedly been reflected in federal legislation. Does the Fourteenth Amendment impose a stricter limitation upon a State’s apportionment of political representatives to its central government? I think not. These are matters of local policy, on the wisdom of which the federal judiciary is neither permitted nor qualified to sit in judgment. The suggestion of my Brother FRANKFURTER that courts lack standards by which to decide such cases as this, is relevant not only to the question of “justiciability,” but also, and perhaps more fundamentally, to the determination whether any cognizable constitutional claim has been asserted in this case. Courts are unable to decide when it is that an apportionment originally valid becomes void because the factors entering into such a decision are basically matters appropriate only for legislative judgment. And so long as there exists a possible rational legislative policy for retaining an existing apportionment, such a legislative decision cannot be said to breach the bulwark against arbitrariness and caprice that the Fourteenth Amendment affords. * * * In conclusion, it is appropriate to say that one need not agree, as a citizen, with what Tennessee has done or failed to do, in order to deprecate, as a judge, what the majority is doing today. Those observers of the Court who see it primarily as the last refuge for the correction of all inequality or injustice, no matter what its nature or source, will no doubt applaud this decision and its break with the past. Those who consider that continuing national respect for the Court’s authority depends in large measure upon its wise exercise of self-restraint and discipline in constitutional adjudication, will view the decision with deep concern. I would affirm.
VIETH v. JUBELIRER
Supreme Court of the United States 541 U.S. 267, 124 S. Ct. 1769, 158 L. Ed. 2d 546 (2004)
JUSTICE SCALIA announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE [REHNQUIST], JUSTICE O’CONNOR, and JUSTICE THOMAS join. Plaintiffs-appellants Richard Vieth, Norma Jean Vieth, and Susan Furey challenge a map drawn by the Pennsylvania General Assembly establishing districts for the election of congressional Representatives, on the ground that the districting constitutes an unconstitutional political gerrymander.1 In Davis v. Bandemer, 478 U.S. 109 (1986), this Court held that political gerrymandering claims are justiciable, but could not agree upon a standard to adjudicate them. The present appeal presents the questions whether our decision in Bandemer was in error, and, if not, what the standard should be. I The facts, as alleged by the plaintiffs, are as follows. The population figures derived from the 2000 census showed that Pennsylvania was entitled to only 19 Representatives in Congress, a decrease in 2 from the Commonwealth’s previous delegation. Pennsylvania’s General Assembly
The term “political gerrymander” has been defined as “[t]he practice of dividing a geographical area into electoral districts, often of highly irregular shape, to give one political party an unfair advantage by diluting the opposition’s voting strength.” Black’s Law Dictionary 696 (7th ed. 1999).
took up the task of drawing a new districting map. At the time, the Republican Party controlled a majority of both state Houses and held the Governor’s office. Prominent national figures in the Republican Party pressured the General Assembly to adopt a partisan redistricting plan as a punitive measure against Democrats for having enacted pro-Democrat redistricting plans elsewhere. The Republican members of Pennsylvania’s House and Senate worked together on such a plan. On January 3, 2002, the General Assembly passed its plan, which was signed into law by Governor Schweiker as Act 1. * * * II Political gerrymanders are not new to the American scene. One scholar traces them back to the Colony of Pennsylvania at the beginning of the 18th century, where several counties conspired to minimize the political power of the city of Philadelphia by refusing to allow it to merge or expand into surrounding jurisdictions, and denying it additional representatives. See E. Griffith, The Rise and Development of the Gerrymander 26-28 (1974). * * * There were allegations that Patrick Henry attempted (unsuccessfully) to gerrymander James Madison out of the First Congress. And in 1812, of course, there occurred the notoriously outrageous political districting in Massachusetts that gave the gerrymander its name—an amalgam of the names of Massachusetts Governor Elbridge Gerry and the creature (“salamander”) which the outline of an election district he was credited with forming was thought to resemble. “By 1840 the gerrymander was a recognized force in party politics and was generally attempted 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 proportionate to its numerical strength.” Griffith 123. It is significant that the Framers provided a remedy for such practices in the Constitution. Article I, § 4, while leaving in state legislatures the initial power to draw districts for federal elections, permitted Congress to “make or alter” those districts if it wished. * * * The power bestowed on Congress to regulate elections, and in particular to restrain the practice of political gerrymandering, has not lain dormant. In the Apportionment Act of 1842, 5 Stat. 491, Congress provided that Representatives must be elected from single-member districts “composed of contiguous territory.” See Griffith 12 (noting that the law was “an attempt to forbid the practice of the gerrymander”). Congress again imposed these requirements in the Apportionment Act of 1862, 12 Stat. 572, and in 1872 further required that districts “contai[n] as nearly as practicable an equal number of inhabitants,” 17 Stat. 28, § 2. In the Apportionment Act of 1901, Congress imposed a compactness requirement. 31 Stat. 733. The requirements of contiguity, compactness, and equality of population were repeated in the 1911 apportionment legislation, 37 Stat. 13, but were not thereafter continued. Today, only the single-memberdistrict-requirement remains. See 2 U.S.C. § 2c. Recent history, however, attests to Congress’s awareness of the sort of districting practices appellants protest, and of its power under Article I, § 4, to control them. Since 1980, no fewer than five bills have been introduced to regulate gerrymandering in congressional districting.4 Eighteen years ago, we held that the Equal Protection Clause grants judges the power—and duty—to control political gerrymandering, see Davis v. Bandemer. It is to consideration of this precedent that we now turn.
The States, of course, have taken their own steps to prevent abusive districting practices. A number have adopted standards for redistricting, and measures designed to insulate the process from politics. * * *
III As Chief Justice Marshall proclaimed two centuries ago, “[i]t is emphatically 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. Such questions are said to be “nonjusticiable,” or “political questions.” In Baker v. Carr, 369 U.S. 186 (1962) [p. XXX], we set forth six independent tests for the existence of a political question: * * *
“ a textually demonstrable constitutional commitment of the issue to a coordinate political department; or  a lack of judicially discoverable and manageable standards for resolving it; or  the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or  the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of the government; or  an unusual need for unquestioning adherence to a political decision already made; or  the potentiality of embarrassment from multifarious pronouncements by various departments on one question.” Id., at 217.
These tests are probably listed in descending order of both importance and certainty. The second is at issue here, and there is no doubt of its validity. “The judicial Power” created by Article III, § 1, of the Constitution is not whatever judges choose to do, or even whatever Congress chooses to assign them. It is the power to act in the manner traditional for English and American courts. One of the most obvious limitations imposed by that requirement is that judicial action must be governed by standard, by rule. Laws promulgated by the Legislative Branch can be inconsistent, illogical, and ad hoc; law pronounced by the courts must be principled, rational, and based upon reasoned distinctions. Over the dissent of three Justices, the Court held in Davis v. Bandemer that, since it was “not persuaded that there are no judicially discernible and manageable standards by which political gerrymander cases are to be decided,” such cases were justiciable. The clumsy shifting of the burden of proof for the premise (the Court was “not persuaded” that standards do not exist, rather than “persuaded” that they do) was necessitated by the uncomfortable fact that the six-Justice majority could not discern what the judicially discernable standards might be. There was no majority on that point. Four of the Justices finding justiciability believed that the standard was one thing, see id., at 127 (plurality opinion of White, J., joined by Brennan, Marshall, and Blackmun, JJ.); two believed it was something else, see id., at 161 (Powell, J., joined by STEVENS, J., concurring in part and dissenting in part). The lower courts have lived with that assurance of a standard (or more precisely, lack of assurance that there is no standard), coupled with that inability to specify a standard, for the past 18 years. In that time, they have considered numerous political gerrymandering claims; this Court has never revisited the unanswered question of what standard governs. Nor can it be said that the lower courts have, over 18 years, succeeded in shaping the standard that this Court was initially unable to enunciate. They have simply applied the standard set forth in Bandemer’s four-Justice plurality opinion. This might be thought to prove that the four-Justice plurality standard has met the test of time—but for the fact that its application has almost invariably produced the same result (except for the incurring of attorney’s fees) as would have obtained if the question were nonjusticiable: Judicial intervention has been refused. * * * To think that this lower court jurisprudence has brought forth “judicially discernible and manageable standards” would be fantasy.
Eighteen years of judicial effort with virtually nothing to show for it justify us in revisiting the question whether the standard promised by Bandemer exists. As the following discussion reveals, no judicially discernible and manageable standards for adjudicating political gerrymandering claims have emerged. Lacking them, we must conclude that political gerrymandering claims are nonjusticiable and that Bandemer was wrongly decided. A We begin our review of possible standards with that proposed by Justice White’s plurality opinion in Bandemer because, as the narrowest ground for our decision in that case, it has been the standard employed by the lower courts. The plurality concluded that a political gerrymandering claim could succeed only where plaintiffs showed “both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.” 478 U.S., at 127. As to the intent element, the plurality acknowledged that “[a]s long as redistricting is done by a legislature, it should not be very difficult to prove that the likely political consequences of the reapportionment were intended.” Id., at 129. However, the effects prong was significantly harder to satisfy. Relief could not be based merely upon the fact that a group of persons banded together for political purposes had failed to achieve representation commensurate with its numbers, or that the apportionment scheme made its winning of elections more difficult. Id., at 132. Rather, it would have to be shown that, taking into account a variety of historic factors and projected election results, the group had been “denied its chance to effectively influence the political process” as a whole, which could be achieved even without electing a candidate. Id., at 132-133. * * * [I]n a challenge to an individual district the inquiry would focus “on the opportunity of members of the group to participate in party deliberations in the slating and nomination of candidates, their opportunity to register and vote, and hence their chance to directly influence the election returns and to secure the attention of the winning candidate.” Id., at 133. A statewide challenge, by contrast, would involve an analysis of “the voters’ direct or indirect influence on the elections of the state legislature as a whole.” Ibid. (emphasis added). With what has proved to be a gross understatement, the plurality acknowledged this was “of necessity a difficult inquiry.” Id., at 143. * * * In the lower courts, the legacy of the plurality’s test is one long record of puzzlement and consternation. * * * Because this standard was misguided when proposed, has not been improved in subsequent application, and is not even defended before us today by the appellants, we decline to affirm it as a constitutional requirement. B Appellants take a run at enunciating their own workable standard based on Article I, § 2, and the Equal Protection Clause. We consider it at length not only because it reflects the litigant’s view as to the best that can be derived from 18 years of experience, but also because it shares many features with other proposed standards, so that what is said of it may be said of them as well. Appellants’ proposed standard retains the two-pronged framework of the Bandemer plurality—intent plus effect—but modifies the type of showing sufficient to satisfy each. To satisfy appellants’ intent standard, a plaintiff must “show that the mapmakers acted with a predominant intent to achieve partisan advantage,” which can be shown “by direct evidence or by circumstantial evidence that other neutral and legitimate redistricting criteria were subordinated to the goal of achieving partisan advantage.” As compared with the Bandemer plurality’s test of mere intent to disadvantage the plaintiff’s group, this proposal seemingly
makes the standard more difficult to meet—but only at the expense of making the standard more indeterminate. “Predominant intent” to disadvantage the plaintiff’s political group refers to the relative importance of that goal as compared with all the other goals that the map seeks to pursue— contiguity of districts, compactness of districts, observance of the lines of political subdivision, protection of incumbents of all parties, cohesion of natural racial and ethnic neighborhoods, compliance with requirements of the Voting Rights Act of 1965 regarding racial distribution, etc. Appellants contend that their intent test must be discernible and manageable because it has been borrowed from our racial gerrymandering cases. See Miller v. Johnson, 515 U.S. 900 (1995) [p. XXX]; Shaw v. Reno, 509 U.S. 630 (1993) [p. XXX]. To begin with, in a very important respect that is not so. In the racial gerrymandering context, the predominant intent test has been applied to the challenged district in which the plaintiffs voted. See Miller, supra; United States v. Hays, 515 U.S. 737 (1995). Here, however, appellants do not assert that an apportionment fails their intent test if any single district does so. Since “it would be quixotic to attempt to bar state legislatures from considering politics as they redraw district lines,” appellants propose a test that is satisfied only when “partisan advantage was the predominant motivation behind the entire statewide plan.” ([E]mphasis added). Vague as the “predominant motivation” test might be when used to evaluate single districts, it all but evaporates when applied statewide. Does it mean, for instance, that partisan intent must outweigh all other goals—contiguity, compactness, preservation of neighborhoods, etc.—statewide? And how is the statewide “outweighing” to be determined? If three-fifths of the map’s districts forgo the pursuit of partisan ends in favor of strictly observing political-subdivision lines, and only two-fifths ignore those lines to disadvantage the plaintiffs, is the observance of political subdivisions the “predominant” goal between those two? We are sure appellants do not think so. Even within the narrower compass of challenges to a single district, applying a “predominant intent” test to racial gerrymandering is easier and less disruptive. The Constitution clearly contemplates districting by political entities, see Article I, § 4, and unsurprisingly that turns out to be root-and-branch a matter of politics. By contrast, the purpose of segregating voters on the basis of race is not a lawful one, and is much more rarely encountered. Determining whether the shape of a particular district is so substantially affected by the presence of a rare and constitutionally suspect motive as to invalidate it is quite different from determining whether it is so substantially affected by the excess of an ordinary and lawful motive as to invalidate it. Moreover, the fact that partisan districting is a lawful and common practice means that there is almost always room for an election-impeding lawsuit contending that partisan advantage was the predominant motivation; not so for claims of racial gerrymandering. Finally, courts might be justified in accepting a modest degree of unmanageability to enforce a constitutional command which (like the Fourteenth Amendment obligation to refrain from racial discrimination) is clear; whereas they are not justified in inferring a judicially enforceable constitutional obligation (the obligation not to apply too much partisanship in districting) which is both dubious and severely unmanageable. For these reasons, to the extent that our racial gerrymandering cases represent a model of discernible and manageable standards, they provide no comfort here. The effects prong of appellants’ proposal replaces the Bandemer plurality’s vague test of “denied its chance to effectively influence the political process” with criteria that are seemingly more specific. The requisite effect is established when “(1) the plaintiffs show that the districts
systematically ‘pack’ and ‘crack’ the rival party’s voters,7 and (2) the court’s examination of the ‘totality of circumstances’ confirms that the map can thwart the plaintiffs’ ability to translate a majority of votes into a majority of seats.” This test is loosely based on our cases applying § 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973, to discrimination by race, see, e.g., Johnson v. De Grandy, 512 U.S. 997 (1994) [p. XXX]. But a person’s politics is rarely as readily discernible —and never as permanently discernible—as a person’s race. Political affiliation is not an immutable characteristic, but may shift from one election to the next; and even within a given election, not all voters follow the party line. We dare say (and hope) that the political party which puts forward an utterly incompetent candidate will lose even in its registration stronghold. These facts make it impossible to assess the effects of partisan gerrymandering, to fashion a standard for evaluating a violation, and finally to craft a remedy. Assuming, however, that the effects of partisan gerrymandering can be determined, appellants’ test would invalidate the districting only when it prevents a majority of the electorate from electing a majority of representatives. Before considering whether this particular standard is judicially manageable we question whether it is judicially discernible in the sense of being relevant to some constitutional violation. Deny it as appellants may (and do), this standard rests upon the principle that groups (or at least political-action groups) have a right to proportional representation. But the Constitution contains no such principle. It guarantees equal protection of the law to persons, not equal representation in government to equivalently sized groups. It nowhere says that farmers or urban dwellers, Christian fundamentalists or Jews, Republicans or Democrats, must be accorded political strength proportionate to their numbers. Even if the standard were relevant, however, it is not judicially manageable. To begin with, how is a party’s majority status to be established? Appellants propose using the results of statewide races as the benchmark of party support. But as their own complaint describes, in the 2000 Pennsylvania statewide elections some Republicans won and some Democrats won. * * * Moreover, to think that majority status in statewide races establishes majority status for district contests, one would have to believe that the only factor determining voting behavior at all levels is political affiliation. That is assuredly not true. As one law review comment has put it:
“There is no statewide vote in this country for the House of Representatives or the state legislature. Rather, there are separate elections between separate candidates in separate districts, and that is all there is. If the districts change, the candidates change, their strengths and weaknesses change, their campaigns change, their ability to raise money changes, the issues change—everything changes. Political parties do not compete for the highest statewide vote totals or the highest mean district vote percentages: They compete for specific seats.” Lowenstein & Steinberg, The Quest for Legislative Districting in the Public Interest: Elusive or Illusory, 33 UCLA L. Rev. 1, 59-60 (1985).
But if we could identify a majority party, we would find it impossible to ensure that that party wins a majority of seats—unless we radically revise the States’ traditional structure for elections. In any winner-take-all district system, there can be no guarantee, no matter how the district lines are drawn, that a majority of party votes statewide will produce a majority of seats for that party. The point is proved by the 2000 congressional elections in Pennsylvania, which, according to appellants’ own pleadings, were conducted under a judicially drawn district map “free from partisan gerrymandering.” On this “neutral playing fiel[d],” the Democrats’ statewide majority of the major-party vote (50.6%) translated into a minority of seats (10, versus 11 for the
“Packing” refers to the practice of filling a district with a supermajority of a given group or party. “Cracking” involves the splitting of a group or party among several districts to deny that group or party a majority in any of those districts.
Republicans). Whether by reason of partisan districting or not, party constituents may always wind up “packed” in some districts and “cracked” throughout others. * * * Consider, for example, a legislature that draws district lines with no objectives in mind except compactness and respect for the lines of political subdivisions. Under that system, political groups that tend to cluster (as is the case with Democratic voters in cities) would be systematically affected by what might be called a “natural” packing effect. Our one-person, one-vote cases, see Reynolds v. Sims, 377 U.S. 533 (1964) [p. XXX]; Wesberry v. Sanders, 376 U.S. 1 (1964) [p. XXX], have no bearing upon this question, neither in principle nor in practicality. Not in principle, because to say that each individual must have an equal say in the selection of representatives, and hence that a majority of individuals must have a majority say, is not at all to say that each discernible group, whether farmers or urban dwellers or political parties, must have representation equivalent to its numbers. And not in practicality, because the easily administrable standard of population equality adopted by Wesberry and Reynolds enables judges to decide whether a violation has occurred (and to remedy it) essentially on the basis of three readily determined factors—where the plaintiff lives, how many voters are in his district, and how many voters are in other districts; whereas requiring judges to decide whether a districting system will produce a statewide majority for a majority party casts them forth upon a sea of imponderables, and asks them to make determinations that not even election experts can agree upon. For these reasons, we find appellants’ proposed standards neither discernible nor manageable. C For many of the same reasons, we also reject the standard suggested by Justice Powell in Bandemer. He agreed with the plurality that a plaintiff should show intent and effect, but believed that the ultimate inquiry ought to focus on whether district boundaries had been drawn solely for partisan ends to the exclusion of “all other neutral factors relevant to the fairness of redistricting.” * * * While Justice Powell rightly criticized the Bandemer plurality for failing to suggest a constitutionally based, judicially manageable standard, the standard proposed in his opinion also falls short of the mark. It is essentially a totality-of-the-circumstances analysis, where all conceivable factors, none of which is dispositive, are weighed with an eye to ascertaining whether the particular gerrymander has gone too far—or, in Justice Powell’s terminology, whether it is not “fair.” “Fairness” does not seem to us a judicially manageable standard. Fairness is compatible with noncontiguous districts, it is compatible with districts that straddle political subdivisions, and it is compatible with a party’s not winning the number of seats that mirrors the proportion of its vote. 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 acceptance for the courts’ intrusion into a process that is the very foundation of democratic decisionmaking. IV We turn next to consideration of the standards proposed by today’s dissenters. We preface it with the observation that the mere fact that these four dissenters come up with three different standards—all of them different from the two proposed in Bandemer and the one proposed here by appellants—goes a long way to establishing that there is no constitutionally discernible standard.
A JUSTICE STEVENS concurs in the judgment that we should not address plaintiffs’ statewide political gerrymandering challenges. Though he reaches that result via standing analysis, while we reach it through political-question analysis, our conclusions are the same: these statewide claims are nonjusticiable. JUSTICE STEVENS would, however, require courts to consider political gerrymandering challenges at the individual-district level. Much of his dissent is addressed to the incompatibility of severe partisan gerrymanders with democratic principles. We do not disagree with that judgment * * *. The issue we have discussed is not whether severe partisan gerrymanders violate the Constitution, but whether it is for the courts to say when a violation has occurred, and to design a remedy. On that point, JUSTICE STEVENS’s dissent is less helpful, saying, essentially, that if we can do it in the racial gerrymandering context we can do it here. We have examined, the many reasons why that is not so. Only a few of them are challenged by JUSTICE STEVENS. He says that we “mistakenly assum[e] that race cannot provide a legitimate basis for making political judgments.” But we do not say that race-conscious decisionmaking is always unlawful. Race can be used, for example, as an indicator to achieve the purpose of neighborhood cohesiveness in districting. What we have said is impermissible is “the purpose of segregating voters on the basis of race”—that is to say, racial gerrymandering for race’s sake, which would be the equivalent of political gerrymandering for politics’ sake. JUSTICE STEVENS says we “er[r] in assuming that politics is ‘an ordinary and lawful motive’ ” in districting—but all he brings forward to contest that is the argument that an excessive injection of politics is unlawful. So it is, and so does our opinion assume. That does not alter the reality that setting out to segregate voters by race is unlawful and hence rare, and setting out to segregate them by political affiliation is (so long as one doesn’t go too far) lawful and hence ordinary. JUSTICE STEVENS’s confidence that what courts have done with racial gerrymandering can be done with political gerrymandering rests in part upon his belief that “the same standards should apply.” But in fact the standards are quite different. A purpose to discriminate on the basis of race receives the strictest scrutiny under the Equal Protection Clause, while a similar purpose to discriminate on the basis of politics does not. * * * Having failed to make the case for strict scrutiny of political gerrymandering, JUSTICE STEVENS falls back on the argument that scrutiny levels simply do not matter for purposes of justiciability. He asserts that a standard imposing a strong presumption of invalidity (strict scrutiny) is no more discernible and manageable than a standard requiring an evenhanded balancing of all considerations with no thumb on the scales (ordinary scrutiny). To state this is to refute it. As is well known, strict scrutiny readily, and almost always, results in invalidation. Moreover, the mere fact that there exist standards which this Court could apply—the proposition which much of JUSTICE STEVENS’s opinion is devoted to establishing—does not mean that those standards are discernible in the Constitution. This Court may not willy-nilly apply standards—even manageable standards—having no relation to constitutional harms. * * * B JUSTICE SOUTER, like JUSTICE STEVENS, would restrict these plaintiffs, on the allegations before us, to district-specific political gerrymandering claims. Unlike JUSTICE STEVENS, however, JUSTICE SOUTER recognizes that there is no existing workable standard for adjudicating such claims. He proposes a “fresh start,” a newly constructed standard loosely based in form on our Title VII
cases, and complete with a five-step prima facie test sewn together from parts of, among other things, our Voting Rights Act jurisprudence, law review articles, and apportionment cases. Even if these self-styled “clues” to unconstitutionality could be manageably applied, which we doubt, there is no reason to think they would detect the constitutional crime which JUSTICE SOUTER is investigating—an “extremity of unfairness” in partisan competition. Under JUSTICE SOUTER’s proposed standard, in order to challenge a particular district, a plaintiff must show (1) that he is a member of a “cohesive political group”; (2) “that the district of his residence . . . paid little or no heed” to traditional districting principles; (3) that there were “specific correlations between the district’s deviations from traditional districting principles and the distribution of the population of his group”; (4) that a hypothetical district exists which includes the plaintiff’s residence, remedies the packing or cracking of the plaintiff’s group, and deviates less from traditional districting principles; and (5) that “the defendants acted intentionally to manipulate the shape of the district in order to pack or crack his group.” When those showings have been made, the burden would shift to the defendants to justify the district “by reference to objectives other than naked partisan advantage.” While this five-part test seems eminently scientific, upon analysis one finds that each of the last four steps requires a quantifying judgment that is unguided and ill suited to the development of judicial standards: How much disregard of traditional districting principles? How many correlations between deviations and distribution? How much remedying of packing or cracking by the hypothetical district? How many legislators must have had the intent to pack and crack— and how efficacious must that intent have been (must it have been, for example, a sine qua non cause of the districting, or a predominant cause)? At step two, for example, JUSTICE SOUTER would require lower courts to assess whether mapmakers paid “little or no heed to . . . traditional districting principles.” What is a lower court to do when, as will often be the case, the district adheres to some traditional criteria but not others? JUSTICE SOUTER’s only response to this question is to evade it: “It is not necessary now to say exactly how a district court would balance a good showing on one of these indices against a poor showing on another, for that sort of detail is best worked out case by case.” But the devil lurks precisely in such detail. The central problem is determining when political gerrymandering has gone too far. It does not solve that problem to break down the original unanswerable question (How much political motivation and effect is too much?) into four more discrete but equally unanswerable questions. JUSTICE SOUTER’s proposal is doomed to failure for a more basic reason: No test—yea, not even a five-part test—can possibly be successful unless one knows what he is testing for. In the present context, the test ought to identify deprivation of that minimal degree of representation or influence to which a political group is constitutionally entitled. As we have seen, the Bandemer test sought (unhelpfully, but at least gamely) to specify what that minimal degree was: “[a] chance to effectively influence the political process.” So did the appellants’ proposed test: “[the] ability to translate a majority of votes into a majority of seats.” JUSTICE SOUTER avoids the difficulties of those formulations by never telling us what his test is looking for, other than the utterly unhelpful “extremity of unfairness.” He vaguely describes the harm he is concerned with as vote dilution, a term which usually implies some actual effect on the weight of a vote. But no element of his test looks to the effect of the gerrymander on the electoral success, the electoral opportunity, or even the political influence, of the plaintiff’s group. We do not know the precise constitutional deprivation his test is designed to identify and prevent. * * * Like us, JUSTICE SOUTER acknowledges and accepts that “some intent to gain political advantage is inescapable whenever political bodies devise a district plan, and some effect results
from the intent.” Thus, again like us, he recognizes that “the issue is one of how much is too much.” And once those premises are conceded, the only line that can be drawn must be based, as JUSTICE SOUTER again candidly admits, upon a substantive “notio[n] of fairness.” This is the same flabby goal that deprived Justice Powell’s test of all determinacy. To be sure, JUSTICE SOUTER frames it somewhat differently: Courts must intervene, he says, when “partisan competition has reached an extremity of unfairness.” We do not think the problem is solved by adding the modifier. C We agree with much of JUSTICE BREYER’s dissenting opinion, which convincingly demonstrates that “political considerations will likely play an important, and proper, role in the drawing of district boundaries.” This places JUSTICE BREYER, like the other dissenters, in the difficult position of drawing the line between good politics and bad politics. Unlike them, he would tackle this problem at the statewide level. The criterion JUSTICE BREYER proposes is nothing more precise than “the unjustified use of political factors to entrench a minority in power.” While he invokes in passing the Equal Protection Clause, it should be clear to any reader that what constitutes unjustified entrenchment depends on his own theory of “effective government.” While one must agree with JUSTICE BREYER’s incredibly abstract starting point that our Constitution sought to create a “basically democratic” form of government, that is a long and impassable distance away from the conclusion that the Judiciary may assess whether a group (somehow defined) has achieved a level of political power (somehow defined) commensurate with that to which they would be entitled absent unjustified political machinations (whatever that means). JUSTICE BREYER provides no real guidance for the journey. [Like JUSTICE SOUTER], he never tells us what he is testing for, beyond the unhelpful “unjustified entrenchment.” Instead, he “set[s] forth several sets of circumstances that lay out the indicia of abuse,” “along a continuum,” proceeding (presumably) from the most clearly unconstitutional to the possibly unconstitutional. With regard to the first “scenario,” he is willing to assert that the indicia “would be sufficient to support a claim.” This seems refreshingly categorical, until one realizes that the indicia consist not merely of the failure of the party receiving the majority of votes to acquire a majority of seats in two successive elections, but also of the fact that there is no “neutral” explanation for this phenomenon. But of course there always is a neutral explanation—if only the time-honored criterion of incumbent protection. The indicia set forth in JUSTICE BREYER’s second scenario “could also add up to unconstitutional gerrymandering,” and for those in the third “a court may conclude that the map crosses the constitutional line.” We find none of this helpful. Each scenario suffers from at least one of the problems we have previously identified, most notably the difficulties of assessing partisan strength statewide and of ascertaining whether an entire statewide plan is motivated by political or neutral justifications. And even at that, the last two scenarios do not even purport to provide an answer, presumably leaving it to each district court to determine whether, under those circumstances, “unjustified entrenchment” has occurred. In sum, we neither know precisely what JUSTICE BREYER is testing for, nor precisely what fails the test. But perhaps the most surprising omission from JUSTICE BREYER’s dissent, given his views on other matters, is the absence of any cost-benefit analysis. JUSTICE BREYER acknowledges that “a majority normally can work its political will,” and well describes the number of actors, from statewide executive officers, to redistricting commissions, to Congress, to the People in ballot initiatives and referenda, that stand ready to make that happen. He gives no instance (and we
know none) of permanent frustration of majority will. But where the majority has failed to assert itself for some indeterminate period (two successive elections, if we are to believe his first scenario), JUSTICE BREYER simply assumes that “court action may prove necessary.” Why so? In the real world, of course, court action that is available tends to be sought, not just where it is necessary, but where it is in the interest of the seeking party. And the vaguer the test for availability, the more frequently interest rather than necessity will produce litigation. Is the regular insertion of the judiciary into districting, with the delay and uncertainty that brings to the political process and the partisan enmity it brings upon the courts, worth the benefit to be achieved—an accelerated (by some unknown degree) effectuation of the majority will? We think not. V JUSTICE KENNEDY recognizes that we have “demonstrat[ed] the shortcomings of the other standards that have been considered to date,” * * * [but] he concludes that courts should continue to adjudicate such claims because a standard may one day be discovered. The first thing to be said about JUSTICE KENNEDY’s disposition is that it is not legally available. The District Court in this case considered the plaintiffs’ claims justiciable but dismissed them because the standard for unconstitutionality had not been met. It is logically impossible to affirm that dismissal without either (1) finding that the unconstitutional-districting standard applied by the District Court, or some other standard that it should have applied, has not been met, or (2) finding (as we have) that the claim is nonjusticiable. JUSTICE KENNEDY seeks to affirm “[b]ecause, in the case before us, we have no standard.” But it is our job, not the plaintiffs’, to explicate the standard that makes the facts alleged by the plaintiffs adequate or inadequate to state a claim. We cannot nonsuit them for our failure to do so. JUSTICE KENNEDY asserts that to declare nonjusticiability would be incautious. Our rush to such a holding after a mere 18 years of fruitless litigation “contrasts starkly” he says, “with the more patient approach” that this Court has taken in the past. We think not. * * * The only cases JUSTICE KENNEDY cites in defense of his never-say-never approach are Baker v. Carr and Bandemer. Bandemer provides no cover. There, all of the Justices who concluded that political gerrymandering claims are justiciable proceeded to describe what they regarded as the discernible and manageable standard that rendered it so. The lower courts were set wandering in the wilderness for 18 years not because the Bandemer majority thought it a good idea, but because five Justices could not agree upon a single standard, and because the standard the plurality proposed turned out not to work. As for Baker v. Carr: It is true enough that, having had no experience whatever in apportionment matters of any sort, the Court there refrained from spelling out the equal protection standard. (It did so a mere two years later in Reynolds v. Sims.) But the judgment under review in Baker, unlike the one under review here, did not demand the determination of a standard. The lower court in Baker had held the apportionment claim of the plaintiffs nonjusticiable, and so it was logically possible to dispose of the appeal by simply disagreeing with the nonjusticiability determination. As we observed earlier, that is not possible here, where the lower court has held the claim justiciable but unsupported by the facts. We must either enunciate the standard that causes us to agree or disagree with that merits judgment, or else affirm that the claim is beyond our competence to adjudicate. JUSTICE KENNEDY worries that “[a] determination by the Court to deny all hopes of intervention could erode confidence in the courts as much as would a premature decision to intervene.” But it
is the function of the courts to provide relief, not hope. What we think would erode confidence is the Court’s refusal to do its job—announcing that there may well be a valid claim here, but we are not yet prepared to figure it out. Moreover, that course does more than erode confidence; by placing the district courts back in the business of pretending to afford help when they in fact can give none, it deters the political process from affording genuine relief. * * * * * * Reduced to its essence, JUSTICE KENNEDY’s opinion boils down to this: “As presently advised, I know of no discernible and manageable standard that can render this claim justiciable. I am unhappy about that, and hope that I will be able to change my opinion in the future.” What are the lower courts to make of this pronouncement? We suggest that they must treat it as a reluctant fifth vote against justiciability at district and statewide levels—a vote that may change in some future case but that holds, for the time being, that this matter is nonjusticiable. VI We conclude that neither Article I, § 2, nor the Equal Protection Clause, nor (what appellants only fleetingly invoke) Article I, § 4, provides a judicially enforceable limit on the political considerations that the States and Congress may take into account when districting. Considerations of stare decisis do not compel us to allow Bandemer to stand. That case involved an interpretation of the Constitution, and the claims of stare decisis are at their weakest in that field, where our mistakes cannot be corrected by Congress. They are doubly weak in Bandemer because the majority’s inability to enunciate the judicially discernible and manageable standard that it thought existed (or did not think did not exist) presaged the need for reconsideration in light of subsequent experience. And they are triply weak because it is hard to imagine how any action taken in reliance upon Bandemer could conceivably be frustrated— except the bringing of lawsuits, which is not the sort of primary conduct that is relevant. While we do not lightly overturn one of our own holdings, “when governing decisions are unworkable or are badly reasoned, ‘this Court has never felt constrained to follow precedent.’ ” Eighteen years of essentially pointless litigation have persuaded us that Bandemer is incapable of principled application. We would therefore overrule that case, and decline to adjudicate these political gerrymandering claims. The judgment of the District Court is affirmed. It is so ordered. JUSTICE KENNEDY, concurring in the judgment. A decision ordering the correction of all election district lines drawn for partisan reasons would commit federal and state courts to unprecedented intervention in the American political process. The Court is correct to refrain from directing this substantial intrusion into the Nation’s political life. While agreeing with the plurality that the complaint the appellants filed in the District Court must be dismissed, and while understanding that great caution is necessary when approaching this subject, I would not foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases. When presented with a claim of injury from partisan gerrymandering, courts confront two obstacles. First is the lack of comprehensive and neutral principles for drawing electoral boundaries. No substantive definition of fairness in districting seems to command general assent. Second is the absence of rules to limit and confine judicial intervention. 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. That courts can grant relief in districting cases where race is involved does not answer our need for fairness principles here. Those controversies implicate a different inquiry. They involve sorting permissible classifications in the redistricting context from impermissible ones. Race is an impermissible classification. Politics is quite a different matter. A determination that a gerrymander violates the law must rest on something more than the conclusion that political classifications were applied. It must rest instead on a conclusion that the classifications, though generally permissible, were applied in an invidious manner or in a way unrelated to any legitimate legislative objective. * * * * * * Because there are yet no agreed upon substantive principles of fairness in districting, we have no basis on which to define clear, manageable, and politically neutral standards for measuring the particular burden a given partisan classification imposes on representational rights. Suitable standards for measuring this burden, however, are critical to our intervention. Absent sure guidance, the results from one gerrymandering case to the next would likely be disparate and inconsistent. * * * There are, then, weighty arguments for holding cases like these to be nonjusticiable; and those arguments may prevail in the long run. In my view, however, the arguments are not so compelling that they require us now to bar all future claims of injury from a partisan gerrymander. It is not in our tradition to foreclose the judicial process from the attempt to define standards and remedies where it is alleged that a constitutional right is burdened or denied. Nor is it alien to the Judiciary to draw or approve election district lines. Courts, after all, already do so in many instances. A determination by the Court to deny all hopes of intervention could erode confidence in the courts as much as would a premature decision to intervene. Our willingness to enter the political thicket of the apportionment process with respect to one-person, one-vote claims makes it particularly difficult to justify a categorical refusal to entertain claims against this other type of gerrymandering. The plurality’s conclusion that absent an “easily administrable standard,” the appellants’ claim must be nonjusticiable contrasts starkly with the more patient approach of Baker v. Carr, not to mention the controlling precedent on the question of justiciability of Davis v. Bandemer, the case the plurality would overrule. * * * That no such standard has emerged in this case should not be taken to prove that none will emerge in the future. Where important rights are involved, the impossibility of full analytical satisfaction is reason to err on the side of caution. Allegations of unconstitutional bias in apportionment are most serious claims, for we have long believed that “the right to vote” is one of “those political processes ordinarily to be relied upon to protect minorities.” United States v. Carolene Products Co., 304 U.S. 144, 153, n.4 (1938). If a State passed an enactment that declared “All future apportionment shall be drawn so as most to burden Party X’s rights to fair and effective representation, though still in accord with one-person, one-vote principles,” we would surely conclude the Constitution had been violated. If that is so, we should admit the possibility remains that a legislature might attempt to reach the same result without that express directive. This possibility suggests that in another case a standard might emerge that suitably demonstrates how an apportionment’s de facto incorporation of partisan classifications burdens rights of fair and effective representation (and so establishes the classification is unrelated to the aims of apportionment and thus is used in an impermissible fashion). * * * If suitable standards with which to measure the burden a gerrymander imposes on representational rights did emerge, hindsight would show that the Court prematurely abandoned
the field. That is a risk the Court should not take. Instead, we should adjudicate only what is in the papers before us. * * * Because, in the case before us, we have no standard by which to measure the burden appellants claim has been imposed on their representational rights, appellants cannot establish that the alleged political classifications burden those same rights. Failing to show that the alleged classifications are unrelated to the aims of apportionment, appellants’ evidence at best demonstrates only that the legislature adopted political classifications. That describes no constitutional flaw, at least under the governing Fourteenth Amendment standard. The plurality thinks I resolve this case with reference to no standard, but that is wrong. The Fourteenth Amendment standard governs; and there is no doubt of that. My analysis only notes that if a subsidiary standard could show how an otherwise permissible classification, as applied, burdens representational rights, we could conclude that appellants’ evidence states a provable claim under the Fourteenth Amendment standard. Though in the briefs and at argument the appellants relied on the Equal Protection Clause as the source of their substantive right and as the basis for relief, I note that the complaint in this case also alleged a violation of First Amendment rights. The First Amendment may be the more relevant constitutional provision in future cases that allege unconstitutional partisan gerrymandering. After all, these allegations involve the First Amendment interest of not burdening or penalizing citizens because of their participation in the electoral process, their voting history, their association with a political party, or their expression of political views. See Elrod v. Burns, 427 U.S. 347 (1976) [p. XXX] (plurality opinion). Under general First Amendment principles those burdens in other contexts are unconstitutional absent a compelling government interest. * * * First Amendment concerns arise where a State enacts a law that has the purpose and effect of subjecting a group of voters or their party to disfavored treatment by reason of their views. In the context of partisan gerrymandering, that means that First Amendment concerns arise where an apportionment has the purpose and effect of burdening a group of voters’ representational rights. * * * Where it is alleged that a gerrymander had the purpose and effect of imposing burdens on a disfavored party and its voters, the First Amendment may offer a sounder and more prudential basis for intervention than does the Equal Protection Clause. The equal protection analysis puts its emphasis on the permissibility of an enactment’s classifications. This works where race is involved since classifying by race is almost never permissible. It presents a more complicated question when the inquiry is whether a generally permissible classification has been used for an impermissible purpose. That question can only be answered in the affirmative by the subsidiary showing that the classification as applied imposes unlawful burdens. The First Amendment analysis concentrates on whether the legislation burdens the representational rights of the complaining party’s voters for reasons of ideology, beliefs, or political association. The analysis allows a pragmatic or functional assessment that accords some latitude to the States. Finally, I do not understand the plurality to conclude that partisan gerrymandering that disfavors one party is permissible. Indeed, the plurality seems to acknowledge it is not. This is all the more reason to admit the possibility of later suits, while holding just that the parties have failed to prove, under our “well developed and familiar” standard, that these legislative classifications “reflec[t] no policy, but simply arbitrary and capricious action.” Baker, 369 U.S., at 226. That said, courts must be cautious about adopting a standard that turns on whether the partisan interests in the redistricting process were excessive. Excessiveness is not easily determined. Consider these apportionment schemes: In one State, Party X controls the
apportionment process and draws the lines so it captures every congressional seat. In three other States, Party Y controls the apportionment process. It is not so blatant or egregious, but proceeds by a more subtle effort, capturing less than all the seats in each State. Still, the total effect of Party Y’s effort is to capture more new seats than Party X captured. Party X’s gerrymander was more egregious. Party Y’s gerrymander was more subtle. In my view, however, each is culpable. *** The ordered working of our Republic, and of the democratic process, depends on a sense of decorum and restraint in all branches of government, and in the citizenry itself. Here, one has the sense that legislative restraint was abandoned. That should not be thought to serve the interests of our political order. Nor should it be thought to serve our interest in demonstrating to the world how democracy works. * * * Still, the Court’s own responsibilities require that we refrain from intervention in this instance. The failings of the many proposed standards for measuring the burden a gerrymander imposes on representational rights make our intervention improper. If workable standards do emerge to measure these burdens, however, courts should be prepared to order relief. With these observations, I join the judgment of the Court. JUSTICE STEVENS, dissenting. The central question presented by this case is whether political gerrymandering claims are justiciable. Although our reasons for coming to this conclusion differ, five Members of the Court are convinced that the plurality’s answer to that question is erroneous. Moreover, as is apparent from our separate writings today, we share the view that, even if these appellants are not entitled to prevail, it would be contrary to precedent and profoundly unwise to foreclose all judicial review of similar claims that might be advanced in the future. That we presently have somewhat differing views—concerning both the precedential value of some of our recent cases and the standard that should be applied in future cases—should not obscure the fact that the areas of agreement set forth in the separate opinions are of far greater significance. The concept of equal justice under law requires the State to govern impartially. Today’s plurality opinion would exempt governing officials from that duty in the context of legislative redistricting and would give license, for the first time, to partisan gerrymanders that are devoid of any rational justification. In my view, when partisanship is the legislature’s sole motivation— when any pretense of neutrality is forsaken unabashedly and all traditional districting criteria are subverted for partisan advantage—the governing body cannot be said to have acted impartially. *** With purpose as the ultimate inquiry, other considerations have supplied ready standards for testing the lawfulness of a gerrymander. In his dissent in Bandemer, Justice Powell explained that “the merits of a gerrymandering claim must be determined by reference to the configurations of the districts, the observance of political subdivision lines, and other criteria that have independent relevance to the fairness of redistricting.” 478 U.S., at 165. * * * The Court has made use of all three parts of Justice Powell’s standard in its recent racial gerrymandering jurisprudence. In those cases, the Court has examined claims that redistricting schemes violate the equal protection guarantee where they are “so highly irregular” on their face that they “rationally cannot be understood as anything other than an effort” to segregate voters by race,” Shaw v. Reno, 509 U.S. [at] 646-647, or where “race for its own sake, and not other districting principles, was the legislature’s dominant and controlling rationale in drawing its district lines,” Miller v. Johnson, 515 U.S., at 913. * * *
Given this clear line of precedents, I should have thought the question of justiciability in cases such as this—where a set of plaintiffs argues that a single motivation resulted in a districting scheme with discriminatory effects—to be well settled. The plurality’s contrary conclusion cannot be squared with our long history of voting rights decisions. Especially perplexing is the plurality’s ipse dixit distinction of our racial gerrymandering cases. Notably, the plurality does not argue that the judicially manageable standards that have been used to adjudicate racial gerrymandering claims would not be equally manageable in political gerrymandering cases. Instead, its distinction of those cases rests on its view that race as a districting criterion is “much more rarely encountered” than partisanship, and that determining whether race—“a rare and constitutionally suspect motive”—dominated a districting decision “is quite different from determining whether [such a decision] is so substantially affected by the excess of an ordinary and lawful motive as to [be] invali[d].” But those considerations are wholly irrelevant to the issue of justiciability. To begin with, the plurality errs in assuming that politics is “an ordinary and lawful motive.” * * * On the contrary, “political belief and association constitute the core of those activities protected by the First Amendment,” Elrod v. Burns, 427 U.S. [at] 356 (plurality opinion), and discriminatory governmental decisions that burden fundamental First Amendment interests are subject to strict scrutiny, id., at 363. Thus, unless party affiliation is an appropriate requirement for the position in question, government officials may not base a decision to hire, promote, transfer, recall, discharge, or retaliate against an employee, or to terminate a contract, on the individual’s partisan affiliation or speech. It follows that political affiliation is not an appropriate standard for excluding voters from a congressional district. * * * State action that discriminates against a political minority for the sole and unadorned purpose of maximizing the power of the majority plainly violates the decisionmaker’s duty to remain impartial. * * * Thus, the critical issue in both racial and political gerrymandering cases is the same: whether a single nonneutral criterion controlled the districting process to such an extent that the Constitution was offended. This Court has treated that precise question as justiciable in Gomillion and in the Shaw line of cases, and today’s plurality has supplied no persuasive reason for distinguishing the justiciability of partisan gerrymanders. Those cases confirm and reinforce the holding that partisan gerrymandering claims are justiciable. * * * “[L]egislatures,” we have explained, “should be bodies which are collectively responsive to the popular will,” Reynolds, 377 U.S., at 565, for “[l]egislators are elected by voters, not farms or cities or economic interests,” id., at 562. Gerrymanders subvert that representative norm because the winner of an election in a gerrymandered district inevitably will infer that her success is primarily attributable to the architect of the district rather than to a constituency defined by neutral principles. The Shaw cases hold that this disruption of the representative process imposes a cognizable “representational har[m].” Because that harm falls squarely on the voters in the district whose representative might or does misperceive the object of her fealty, the injury is cognizable only when stated by voters who reside in that particular district; otherwise the “plaintiff would be asserting only a generalized grievance against governmental conduct of which he or she does not approve.” * * * [District-specific challenges, however, allege] precisely the harm that the Shaw cases treat as cognizable in the context of racial gerrymandering. The same treatment is warranted in this case. The risk of representational harms identified in the Shaw cases is equally great, if not greater, in the context of partisan gerrymanders. Shaw I was borne of the concern that an official elected from a racially gerrymandered district will feel beholden only to a portion of her constituents,
and that those constituents will be defined by race. 509 U.S., at 648. The parallel danger of a partisan gerrymander is that the representative will perceive that the people who put her in power are those who drew the map rather than those who cast ballots, and she will feel beholden not to a subset of her constituency, but to no part of her constituency at all. The problem, simply put, is that the will of the cartographers rather than the will of the people will govern.* * * [W]hile political considerations may properly influence the decisions of our elected officials, when such decisions disadvantage members of a minority group—whether the minority is defined by its members’ race, religion, or political affiliation—they must rest on a neutral predicate. * * * In evaluating a claim that a governmental decision violates the Equal Protection Clause, we have long required a showing of discriminatory purpose. See Washington v. Davis. That requirement applies with full force to districting decisions. The line that divides a racial or ethnic minority unevenly between school districts can be entirely legitimate if chosen on the basis of neutral factors—county lines, for example, or a natural boundary such as a river or major thoroughfare. But if the district lines were chosen for the purpose of limiting the number of minority students in the school, or the number of families holding unpopular religious or political views, that invidious purpose surely would invalidate the district. Consistent with that principle, our recent racial gerrymandering cases have examined the shape of the district and the purpose of the districting body to determine whether race, above all other criteria, predominated in the line-drawing process. * * * Just as irrational shape can serve as an objective indicator of an impermissible legislative purpose, other objective features of a districting map can save the plan from invalidation. We have explained that “traditional districting principles,” which include “compactness, contiguity, and respect for political subdivisions,” are “important not because they are constitutionally required . . . but because they are objective factors that may serve to defeat a claim that a district has been gerrymandered on racial lines.” Shaw I, 509 U.S., at 647. * * * In my view, the same standards should apply to claims of political gerrymandering, for the essence of a gerrymander is the same regardless of whether the group is identified as political or racial. Gerrymandering always involves the drawing of district boundaries to maximize the voting strength of the dominant political faction and to minimize the strength of one or more groups of opponents. In seeking the desired result, legislators necessarily make judgments about the probability that the members of identifiable groups—whether economic, religious, ethnic, or racial—will vote in a certain way. The overriding purpose of those predictions is political. It follows that the standards that enable courts to identify and redress a racial gerrymander could also perform the same function for other species of gerrymanders. The racial gerrymandering cases therefore supply a judicially manageable standard for determining when partisanship, like race, has played too great of a role in the districting process. Just as race can be a factor in, but cannot dictate the outcome of, the districting process, so too can partisanship be a permissible consideration in drawing district lines, so long as it does not predominate. * * * The plurality reasons that the standards for evaluating racial gerrymanders are not workable in cases such as this because partisan considerations, unlike racial ones, are perfectly legitimate. Until today, however, there has not been the slightest intimation in any opinion written by any Member of this Court that a naked purpose to disadvantage a political minority would provide a rational basis for drawing a district line. On the contrary, our opinions referring to political gerrymanders have consistently assumed that they were at least undesirable, and we always have
indicated that political considerations are among those factors that may not dominate districting decisions. Purely partisan motives are “rational” in a literal sense, but there must be a limiting principle. * * * A legislature controlled by one party could not, for instance, impose special taxes on members of the minority party, or use tax revenues to pay the majority party’s campaign expenses. The rational basis for government decisions must satisfy a standard of legitimacy and neutrality; an acceptable rational basis can be neither purely personal nor purely partisan. * * * In sum, in evaluating a challenge to a specific district, I would apply the standard set forth in the Shaw cases and ask whether the legislature allowed partisan considerations to dominate and control the lines drawn, forsaking all neutral principles. Under my analysis, if no neutral criterion can be identified to justify the lines drawn, and if the only possible explanation for a district’s bizarre shape is a naked desire to increase partisan strength, then no rational basis exists to save the district from an equal protection challenge. Such a narrow test would cover only a few meritorious claims, but it would preclude extreme abuses, * * * and it would perhaps shorten the time period in which the pernicious effects of such a gerrymander are felt. This test would mitigate the current trend under which partisan considerations are becoming the be-all and endall in apportioning representatives. * * * Accordingly, I respectfully dissent. JUSTICE SOUTER, with whom JUSTICE GINSBURG joins, dissenting. * * * * * * [S]ome intent to gain political advantage is inescapable whenever political bodies devise a district plan, and some effect results from the intent. Thus, the issue is one of how much is too much, and we can be no more exact in stating a verbal test for too much partisanship than we can be in defining too much race consciousness when some is inevitable and legitimate. Instead of coming up with a verbal formula for too much, then, the Court’s job must be to identify clues, as objective as we can make them, indicating that partisan competition has reached an extremity of unfairness. The plurality says, in effect, that courts have been trying to devise practical criteria for political gerrymandering for nearly 20 years, without being any closer to something workable than we were when Davis was decided. While this is true enough, I do not accept it as sound counsel of despair. For I take it that the principal reason we have not gone from theoretical justiciability to practical administrability in political gerrymandering cases is the Davis plurality’s specification that any criterion of forbidden gerrymandering must require a showing that members of the plaintiff’s group had “essentially been shut out of the political process,” 478 U.S., at 139. * * * Since this Court has created the problem no one else has been able to solve, it is up to us to make a fresh start. There are a good many voices saying it is high time that we did, for in the years since Davis, the increasing efficiency of partisan redistricting has damaged the democratic process to a degree that our predecessors only began to imagine. * * * I would therefore preserve Davis’s holding that political gerrymandering is a justiciable issue, but otherwise start anew. I would adopt a political gerrymandering test analogous to the summary judgment standard crafted in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), calling for a plaintiff to satisfy elements of a prima facie cause of action, at which point the State would have the opportunity not only to rebut the evidence supporting the plaintiff’s case, but to offer an affirmative justification for the districting choices, even assuming the proof of the plaintiff’s allegations. My own judgment is that we would have better luck at devising a workable prima facie case if we concentrated as much as possible on suspect characteristics of
individual districts instead of statewide patterns. It is not that a statewide view of districting is somehow less important; the usual point of gerrymandering, after all, is to control the greatest number of seats overall. But, as will be seen, we would be able to call more readily on some existing law when we defined what is suspect at the district level, and for now I would conceive of a statewide challenge as itself a function of claims that individual districts are illegitimately drawn. Finally, in the same interest of threshold simplicity, I would stick to problems of singlemember districts; if we could not devise a workable scheme for dealing with claims about these, we would have to forget the complications posed by multimember districts. For a claim based on a specific single-member district, I would require the plaintiff to make out a prima facie case with five elements. First, the resident plaintiff would identify a cohesive political group to which he belonged, which would normally be a major party, as in this case and in Davis. There is no reason in principle, however, to rule out a claimant from a minor political party (which might, if it showed strength, become the target of vigorous hostility from one or both major parties in a State) or from a different but politically coherent group whose members engaged in bloc voting, as a large labor union might do. The point is that it must make sense to speak of a candidate of the group’s choice, easy to do in the case of a large or small political party, though more difficult when the organization is not defined by politics as such. Second, a plaintiff would need to show that the district of his residence paid little or no heed to those traditional districting principles whose disregard can be shown straightforwardly: contiguity, compactness, respect for political subdivisions, and conformity with geographic features like rivers and mountains. Because such considerations are already relevant to justifying small deviations from absolute population equality, Karcher [v. Daggett], 462 U.S. , 740 [(1983)] and because compactness in particular is relevant to demonstrating possible majorityminority districts under the Voting Rights Act of 1965, Johnson v. De Grandy, 512 U.S. [at] 1008, there is no doubt that a test relying on these standards would fall within judicial competence. Indeed, although compactness is at first blush the least likely of these principles to yield precision, it can be measured quantitatively in terms of dispersion, perimeter, and population ratios, and the development of standards would thus be possible. * * * It is not necessary now to say exactly how a district court would balance a good showing on one of these indices against a poor showing on another, for that sort of detail is best worked out case by case. Third, the plaintiff would need to establish specific correlations between the district’s deviations from traditional districting principles and the distribution of the population of his group. * * * That would begin, but not complete, the plaintiff’s case that the defendant had chosen either to pack the group (drawn a district in order to include a uselessly high number of the group) or to crack it (drawn it so as to include fatally few), the ordinary methods of vote dilution in single-member district systems. Fourth, a plaintiff would need to present the court with a hypothetical district including his residence, one in which the proportion of the plaintiff’s group was lower (in a packing claim) or higher (in a cracking one) and which at the same time deviated less from traditional districting principles than the actual district. Cf. Thornburg v. Gingles, 478 U.S. 30, 50 (1986) [p. XXX]. This hypothetical district would allow the plaintiff to claim credibly that the deviations from traditional districting principles were not only correlated with, but also caused by, the packing or cracking of his group. * * * Fifth, and finally, the plaintiff would have to show that the defendants acted intentionally to manipulate the shape of the district in order to pack or crack his group. See Washington v. Davis.
In substantiating claims of political gerrymandering under a plan devised by a single major party, proving intent should not be hard, once the third and fourth (correlation and cause) elements are established, politicians not being politically disinterested or characteristically naive. * * * I would, however, treat any showing of intent in a major-party case as too equivocal to count unless the entire legislature were controlled by the governor’s party (or the dominant legislative party were vetoproof). * * * A plaintiff who got this far would have shown that his State intentionally acted to dilute his vote, having ignored reasonable alternatives consistent with traditional districting principles. I would then shift the burden to the defendants to justify their decision by reference to objectives other than naked partisan advantage. They might show by rebuttal evidence that districting objectives could not be served by the plaintiff’s hypothetical district better than by the district as drawn, or they might affirmatively establish legitimate objectives better served by the lines drawn than by the plaintiff’s hypothetical. The State might, for example, posit the need to avoid racial vote dilution. * * * It might plead one person, one vote, a standard compatible with gerrymandering but in some places perhaps unattainable without some lopsided proportions. The State might adopt the object of proportional representation among its political parties through its districting process. * * * This is not, however, the time or place for a comprehensive list of legitimate objectives a State might present. The point here is simply that the Constitution should not petrify traditional districting objectives as exclusive, and it is enough to say that the State would be required to explain itself, to demonstrate that whatever reasons it gave were more than a mere pretext for an old-fashioned gerrymander. As for a statewide claim, I would not attempt an ambitious definition without the benefit of experience with individual district claims, and for now I would limit consideration of a statewide claim to one built upon a number of district-specific ones. Each successful district-specific challenge would necessarily entail redrawing at least one contiguous district, and the more the successful claims, the more surrounding districts to be redefined. At a certain point, the ripples would reach the state boundary, and it would no longer make any sense for a district court to consider the problems piecemeal. The plurality says that my proposed standard would not solve the essential problem of unworkability. * * * The enquiries I am proposing are not, to be sure, as hard edged as I wish they could be, but neither do they have a degree of subjectivity inconsistent with the judicial function. * * * My test would no doubt leave substantial room for a party in power to seek advantage through its control of the districting process; the only way to prevent all opportunism would be to remove districting wholly from legislative control, which I am not prepared to say the Constitution requires. But that does not make it impossible for courts to identify at least the worst cases of gerrymandering, and to provide a remedy. The most the plurality can show is that my approach would not catch them all. * * * JUSTICE BREYER, dissenting. * * * [A] single-member-district system helps to ensure certain democratic objectives better than many “more representative” (i.e., proportional) electoral systems. Of course, single-member districts mean that only parties with candidates who finish “first past the post” will elect legislators. That fact means in turn that a party with a bare majority of votes or even a plurality of votes will often obtain a large legislative majority, perhaps freezing out smaller parties. But
single-member districts thereby diminish the need for coalition governments. And that fact makes it easier for voters to identify which party is responsible for government decisionmaking (and which rascals to throw out), while simultaneously providing greater legislative stability. * * * This is not to say that single-member districts are preferable; it is simply to say that singlemember-district systems and more-directly-representational systems reflect different conclusions about the proper balance of different elements of a workable democratic government. If single-member districts are the norm, however, then political considerations will likely play an important, and proper, role in the drawing of district boundaries. In part, that is because politicians, unlike nonpartisan observers, normally understand how “the location and shape of districts” determine “the political complexion of the area.” Gaffney v. Cummings, 412 U.S. 735, 753 (1973) [p. XXX]. It is precisely because politicians are best able to predict the effects of boundary changes that the districts they design usually make some political sense. * * * More important for present purposes, the role of political considerations reflects a surprising mathematical fact. Given a fairly large state population with a fairly large congressional delegation, districts assigned so as to be perfectly random in respect to politics would translate a small shift in political sentiment, say a shift from 51% Republican to 49% Republican, into a seismic shift in the makeup of the legislative delegation, say from 100% Republican to 100% Democrat. Any such exaggeration of tiny electoral changes—virtually wiping out legislative representation of the minority party—would itself seem highly undemocratic. Given the resulting need for single-member districts with nonrandom boundaries, it is not surprising that “traditional” districting principles have rarely, if ever, been politically neutral. Rather, because, in recent political memory, Democrats have often been concentrated in cities while Republicans have often been concentrated in suburbs and sometimes rural areas, geographically drawn boundaries have tended to “pac[k]” the former. * * * Neighborhood or community-based boundaries, seeking to group Irish, Jewish, or African-American voters, often did the same. All this is well known to politicians, who use their knowledge about the effects of the “neutral” criteria to partisan advantage when drawing electoral maps. And were it not so, the iron laws of mathematics would have worked their extraordinary volatility-enhancing will. This is to say that traditional or historically based boundaries are not, and should not be, “politics free.” Rather, those boundaries represent a series of compromises of principle—among the virtues of, for example, close representation of voter views, ease of identifying “government” and “opposition” parties, and stability in government. They also represent an uneasy truce, sanctioned by tradition, among different parties seeking political advantage. [R]eference back to these underlying considerations helps to explain why the legislature’s use of political boundary-drawing considerations ordinarily does not violate the Constitution’s Equal Protection Clause. The reason lies not simply in the difficulty of identifying abuse or finding an appropriate judicial remedy. The reason is more fundamental: Ordinarily, there simply is no abuse. The use of purely political boundary-drawing factors, even where harmful to the members of one party, will often nonetheless find justification in other desirable democratic ends, such as maintaining relatively stable legislatures in which a minority party retains significant representation. At the same time, these considerations can help identify at least one circumstance where use of purely political boundary-drawing factors can amount to a serious, and remediable, abuse, namely, the unjustified use of political factors to entrench a minority in power. By entrenchment I mean a situation in which a party that enjoys only minority support among the populace has nonetheless contrived to take, and hold, legislative power. By unjustified entrenchment I mean
that the minority’s hold on power is purely the result of partisan manipulation and not other factors. These “other” factors that could lead to “justified” (albeit temporary) minority entrenchment include sheer happenstance, the existence of more than two major parties, the unique constitutional requirements of certain representational bodies such as the Senate, or reliance on traditional (geographic, communities of interest, etc.) districting criteria. The democratic harm of unjustified entrenchment is obvious. * * * The need for legislative stability cannot justify entrenchment, for stability is compatible with a system in which the loss of majority support implies a loss of power. The need to secure minority representation in the legislature cannot justify entrenchment, for minority party representation is also compatible with a system in which the loss of minority support implies a loss of representation. Constitutionally specified principles of representation, such as that of two Senators per State, cannot justify entrenchment where the House of Representatives or similar state legislative body is at issue. Unless some other justification can be found in particular circumstances, political gerrymandering that so entrenches a minority party in power violates basic democratic norms and lacks countervailing justification. For this reason, whether political gerrymandering does, or does not, violate the Constitution in other instances, gerrymandering that leads to entrenchment amounts to an abuse that violates the Constitution’s Equal Protection Clause. Courts need not intervene often to prevent the kind of abuse I have described, because those harmed constitute a political majority, and a majority normally can work its political will. Where a State has improperly gerrymandered legislative or congressional districts to the majority’s disadvantage, the majority should be able to elect officials in statewide races—particularly the Governor—who may help to undo the harm that districting has caused the majority’s party, in the next round of districting if not sooner. And where a State has improperly gerrymandered congressional districts, Congress retains the power to revise the State’s districting determinations. See U.S. Const., Art. I, § 4. Moreover, voters in some States, perhaps tiring of the political boundary-drawing rivalry, have found a procedural solution, confiding the task to a commission that is limited in the extent to which it may base districts on partisan concerns. According to the National Conference of State Legislatures, 12 States currently give “first and final authority for [state] legislative redistricting to a group other than the legislature.” * * * A number of States use a commission for congressional redistricting[.] * * * But we cannot always count on a severely gerrymandered legislature itself to find and implement a remedy. The party that controls the process has no incentive to change it. And the political advantages of a gerrymander may become ever greater in the future. The availability of enhanced computer technology allows the parties to redraw boundaries in ways that target individual neighborhoods and homes, carving out safe but slim victory margins in the maximum number of districts, with little risk of cutting their margins too thin. * * * By redrawing districts every 2 years, rather than every 10 years, a party might preserve its political advantages notwithstanding population shifts in the State. The combination of increasingly precise mapdrawing technology and increasingly frequent map drawing means that a party may be able to bring about a gerrymander that is not only precise, but virtually impossible to dislodge. Thus, court action may prove necessary. When it is necessary, a court should prove capable of finding an appropriate remedy. Courts have developed districting remedies in other cases. * * * Moreover, if the dangers of inadvertent
political favoritism prove too great, a procedural solution, such as the use of a politically balanced boundary-drawing commission, may prove possible. The bottom line is that courts should be able to identify the presence of one important gerrymandering evil, the unjustified entrenching in power of a political party that the voters have rejected. They should be able to separate the unjustified abuse of partisan boundary-drawing considerations to achieve that end from their more ordinary and justified use. And they should be able to design a remedy for extreme cases. I do not claim that the problem of identification and separation is easily solved, even in extreme instances. But courts can identify a number of strong indicia of abuse. The presence of actual entrenchment, while not always unjustified (being perhaps a chance occurrence), is such a sign, particularly when accompanied by the use of partisan boundary-drawing criteria in the way that JUSTICE STEVENS describes, i.e., a use that both departs from traditional criteria and cannot be explained other than by efforts to achieve partisan advantage. Below, I set forth several sets of circumstances that lay out the indicia of abuse I have in mind. The scenarios fall along a continuum: The more permanently entrenched the minority’s hold on power becomes, the less evidence courts will need that the minority engaged in gerrymandering to achieve the desired result. Consider, for example, the following sets of circumstances. First, suppose that the legislature has proceeded to redraw boundaries in what seem to be ordinary ways, but the entrenchment harm has become obvious. E.g., (a) the legislature has not redrawn district boundaries more than once within the traditional 10-year period; and (b) no radical departure from traditional districting criteria is alleged; but (c) a majority party (as measured by the votes actually cast for all candidates who identify themselves as members of that party in the relevant set of elections; i.e., in congressional elections if a congressional map is being challenged) has twice failed to obtain a majority of the relevant legislative seats in elections; and (d) the failure cannot be explained by the existence of multiple parties or in other neutral ways. In my view, these circumstances would be sufficient to support a claim of unconstitutional entrenchment. Second, suppose that plaintiffs could point to more serious departures from redistricting norms. E.g., (a) the legislature has not redrawn district boundaries more than once within the traditional 10-year period; but (b) the boundary-drawing criteria depart radically from previous or traditional criteria; (c) the departure cannot be justified or explained other than by reference to an effort to obtain partisan political advantage; and (d) a majority party (as defined above) has once failed to obtain a majority of the relevant seats in election using the challenged map (which fact cannot be explained by the existence of multiple parties or in other neutral ways). These circumstances could also add up to unconstitutional gerrymandering. Third, suppose that the legislature clearly departs from ordinary districting norms, but the entrenchment harm, while seriously threatened, has not yet occurred. E.g., (a) the legislature has redrawn district boundaries more than once within the traditional 10-year census-related period —either, as here, at the behest of a court that struck down an initial plan as unlawful, * * * or of its own accord; (b) the boundary-drawing criteria depart radically from previous traditional boundary-drawing criteria; (c) strong, objective, unrefuted statistical evidence demonstrates that a party with a minority of the popular vote within the State in all likelihood will obtain a majority of the seats in the relevant representative delegation; and (d) the jettisoning of traditional districting criteria cannot be justified or explained other than by reference to an effort to obtain partisan political advantage. To my mind, such circumstances could also support a claim, because the presence of midcycle redistricting, for any reason, raises a fair inference that partisan
machinations played a major role in the map-drawing process. Where such an inference is accompanied by statistical evidence that entrenchment will be the likely result, a court may conclude that the map crosses the constitutional line we are describing. The presence of these, or similar, circumstances—where the risk of entrenchment is demonstrated, where partisan considerations render the traditional district-drawing compromises irrelevant, where no justification other than party advantage can be found—seem to me extreme enough to set off a constitutional alarm. The risk of harm to basic democratic principle is serious; identification is possible; and remedies can be found. * * * Notes and Questions 1. Baker v. Carr is an influential political-question case, particularly given that, in synthesizing prior cases, the majority opinion summarizes the criteria for judges to consider in applying the doctrine. The most prominent of the criteria are whether there is a “textually demonstrable commitment of the issue to a coordinate branch of government,” and whether there are “judicially manageable standards for resolving” the issue. Baker was mainly concerned with the latter criterion, and held that there were, or could be, such standards, and thus a dismissal of the claim on political-question doctrine grounds was inappropriate. From the discussion in the majority and concurring opinions, what were those standards? Did the majority and concurring opinions adequately respond to the arguments of the dissents that a judicially manageable standard was lacking? With regard to deciding the presence, or lack thereof, of a political question, to what extent was it relevant to the Justices that efforts to legislatively update the 1901 system of legislative apportionment in Tennessee had failed? To what extent should that fact have been relevant? 2. Was it proper for Justice Kennedy to vote to dismiss Vieth while suggesting that perhaps at some point a judicially manageable standard would be developed? Is there any difference between his position and that of a Justice who votes with the plurality but who indicates a willingness to reconsider his views, and perhaps to overrule the case, in the future? Was it proper for Baker to decide the question of justiciability without first setting forth the standard for judging districts’ compliance with the Equal Protection Clause? 3. While Baker leaves the Guarantee Clause jurisprudentially far behind, is there an argument that the result in the case would have been better grounded in that Clause, as opposed to the Equal Protection Clause? For a trenchant presentation of that argument, see Michael W. McConnell, The Redistricting Cases: Original Mistakes and Current Consequences, 24 HARV. J.L. & PUB. POL’Y 103 (2000). McConnell contended that the serious political-process concerns raised in Baker—an entrenched rural minority maintaining control of governmental structures— could plausibly be said to implicate the Guarantee Clause. In contrast, he argued, the Equal Protection Clause is mainly concerned with individual rights, not government political structure as such, and as of the date of Baker the Clause had not been applied to districting, so a facile conclusion that there were, or would be, familiar and well developed standards to apply under that Clause was not convincing. He also contended that jurisprudence grounded in the Guarantee Clause might have led to more principled ways for courts to deal with racial and political gerrymandering of legislative districts. Thus, he suggested, a racial gerrymander, while perhaps objectionable to some as a matter of policy, does not offend the Constitution’s guarantee of a republican form of government, while a political gerrymander arguably would. Consider these arguments in light of the opinions in Vieth comparing and contrasting Baker and its progeny, and the cases placing limits on racially gerrymandered districts.
4. Both Justice Frankfurter, dissenting in Baker, and Justice Scalia, writing for the plurality in Vieth, argued for applying the political-question doctrine because there were no judicially manageable standards to be found in the Constitution for resolving these kinds of districting disputes, and because the Court’s reputation would suffer if it involved itself excessively in the political process. Should the second concern be of any relevance? That is, should the Court be able to evade constitutional decisions where it fears that such decisions will be unpopular? Cf. Planned Parenthood v. Casey, 505 U.S. 833, 998 (1992) (Scalia, J., dissenting) (“[W]hether it would ‘subvert the Court’s legitimacy’ or not, the notion that we would decide a case differently from the way we otherwise would have in order to show that we can stand firm against public disapproval is frightening.”). 5. Chapter 3 addresses in detail the considerable jurisprudential and policy aftermath of Baker and its progeny in the Supreme Court and the lower courts. Here, it is worth mentioning that the cases led to considerable reapportionment of state legislative districts, and the state drawing of districts for the U.S. House of Representatives. This redistricting now takes place every ten years, typically early in a decade, after the annual census is completed. For overviews of these developments, see STEPHEN ANSOLABEHERE & JAMES M. SNYDER, JR., THE END OF INEQUALITY: ONE PERSON, ONE VOTE AND THE TRANSFORMATION OF AMERICAN POLITICS (2008); GARY W. COX & JONATHAN N. KATZ, ELBRIDGE GERRY’S SALAMANDER: THE ELECTORAL CONSEQUENCES OF THE REAPPORTIONMENT REVOLUTION (2002); GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? (2d ed. 2008). 6. The opinions in Baker and Vieth discuss how the other branches of government have dealt (or can deal) with the problem of various forms of gerrymandering. These include Congress itself directing the drawing of districts for the U.S. House of Representatives, or bipartisan or nonpartisan redistricting commissions in individual states. For an overview, see David Schultz, Regulating the Political Thicket: Congress, the Courts, and State Reapportionment Commissions, 3 CHARLESTON L. REV. 107 (2008). Not surprisingly, the efforts to depoliticize the drawing of legislative districts have not drawn universal support. The reaction of the parties in states has often ranged from lukewarmth to outright opposition, depending on how favorable the status quo was to their interests. It appears that voters act in a similar fashion, when asked to approve the creation of redistricting commissions by initiative or referenda. Caroline J. Tolbert et al., Strategic Voting and Legislative Redistricting Reform, 62 POL. RES. Q. 92 (2009). 7. The opinions in Vieth sparred over the existence of judicially manageable standards to police political gerrymandering. Who gets the better of the argument? Does Justice Scalia adequately distinguish the cases (e.g., Shaw v. Reno) which permit courts to regulate racially gerrymandered districts? The result in Vieth has not deterred scholarly attempts to formulate standards to govern and potentially limit partisan redistricting. See, e.g., Laughlin McDonald, The Looming 2010 Census: A Proposed Judicially Manageable Standard and other Reform Options for Partisan Gerrymandering, 46 HARV. J. ON LEGIS. 243 (2009) (proposing standard that considers a predominately partisan purpose and disproportionate electoral results); Douglass Calidas, Note, Hindsight is 20/20: Revisiting the Reapportionment Cases to Gain Perspective on Partisan Gerrymanders, 57 DUKE L.J. 1412 (2008) (arguing that just as Baker-type reapportionment cases came to enjoy popular support, judicial regulation of partisan gerrymanders will also be supported). Partisan gerrymandering is often said to be a cause of increased political polarization in Congress and in state legislatures, since it is said to create increasingly homogenous districts. For a study of congressional districting finding little support
for the posited linkage, see Nolan McCarty et al., Does Gerrymandering Cause Polarization?, 53 J. POL. 666 (2009). 8. Not specifically addressed in Baker, but raised in later cases, is the issue of bipartisan gerrymanders, where both political parties collude to draw districts favorable to their respective incumbents. The high reelection rate for incumbents for both federal and state offices in recent decades, see Stephen Ansolabehere & James M. Snyder, Jr., The Incumbency Advantage in U.S. Elections: An Analysis of State and Federal Offices, 1942-2000, 1 ELECTION L.J. 315 (2002), is often attributed to such collusion. But see John N. Friedman & Richard T. Holden, The Rising Incumbent Reelection Rate: What’s Gerrymandering Got to Do With It?, 71 J. POL. 593 (2009) (arguing that bipartisan gerrymandering has not been a determinative factor). Does the lack of competitive districts raise legal and policy issues different from those concerning purely partisan gerrymanders, or call for a different judicial response? Compare Samuel Issacharoff, Gerrymandering and Political Cartels, 116 HARV. L. REV. 593 (2002) with Nathaniel Persily, In Defense of Foxes Guarding Henhouses: The Case for Judicial Acquiescence in IncumbentProtecting Gerrymanders, 116 HARV. L. REV. 649 (2002) and Note, Political Gerrymandering 2000-2008: “A Self-Limiting Enterprise”?, 122 HARV. L. REV. 1467 (2009). 9. In LULAC v. Perry, 548 U.S. 399, 419-20 (2006) [p. XXX], plaintiffs argued that a middecade (re-)redistricting to benefit one party was unconstitutional. A plurality of the Court, in an opinion by Justice Kennedy, declined to address the claim, on the grounds that it was a political question. The plurality concluded that there were no judicial manageable standards to determine when such redistricting was unconstitutional. As in Vieth, however, a majority of the Justices appeared to leave open the possibility that suits against such redistricting might not always be considered a political question. 10. In Bush v. Gore, 531 U.S. 98 (2000) (per curiam) [p. XXX], the Supreme Court, 5-4, reversed a decision of the Florida Supreme Court which had ordered a manual recount of certain ballots in the presidential election in Florida, effectively ensuring that George W. Bush would be elected President over Al Gore. The Court ruled that such a manual recount would lead to counting disparities that would violate the Due Process and Equal Protection Clauses. Some amicus curiae briefs argued that the case raised a political question and hence should not be decided by the Court. The argument was that the Twelfth Amendment reserves to Congress the right to determine if a state’s presidential electors have been properly chosen. The plurality opinion in the case made no mention of the political-question doctrine, and it was only briefly mentioned in the concurring and dissenting opinions. For further discussion, see Rachel Barkow, More Supreme Than Court? The Fall of the Political Question Doctrine and the Rise of Judicial Supremacy, 102 COLUM. L. REV. 237, 273-300 (2002); Erwin Chemerinsky, Bush v. Gore Was Not Justiciable, 76 NOTRE DAME L. REV. 1093, 1105-09 (2001); Robert J. Pushaw, Jr., The Presidential Election Dispute, the Political Question Doctrine, and the Fourteenth Amendment: A Reply to Professors Krent and Shane, 29 FLA. ST. U. L. REV. 603 (2001).