High Court Decides Redistricting Issue - KTRE.com | Lufkin and Nacogdoches, Texas

06/28/06 - Texas

High Court Decides Redistricting Issue

According to a statement from Attorney General Communications Director Angela Hale, "the United States Supreme Court conclusively rejected broad challenges to the Texas congressional redistricting plan.

Although one district must be partially redrawn, the overall contours of the map adopted by the Texas Legislature were affirmed by the U. S. Supreme Court.

The Constitution gives elected legislatures primary responsibility for drawing congressional districts, and the Court made clear that the Texas Legislature was fully within its constitutional authority when it adopted a congressional plan that more fairly represents the demonstrated preferences of Texas voters.

The timeline and the procedure for redrawing the only district requiring further action will be addressed by the three-judge Federal District Court at a hearing in the near future."

The following is a copy of the U.S. Supreme Court's ruling, provided by the Texas Attorney General's office:

Cite as: 548 U. S. ____ (2006) 1

Opinion of KENNEDY, J.

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

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

notify the Reporter of Decisions, Supreme Court of the United States, Washington,

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

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

SUPREME COURT OF THE UNITED STATES

 

_________________

Nos. 05.204, 05.254, 05.276 and 05.439

_________________

LEAGUE OF UNITED LATIN AMERICAN CITIZENS,

ET AL., APPELLANTS

05.204 v.

 

RICK PERRY, GOVERNOR OF TEXAS, ET AL.

TRAVIS COUNTY, TEXAS, ET AL., APPELLANTS

05.254 v.

 

RICK PERRY, GOVERNOR OF TEXAS, ET AL.

EDDIE JACKSON, ET AL., APPELLANTS

05.276 v.

 

RICK PERRY, GOVERNOR OF TEXAS, ET AL.

GI FORUM OF TEXAS, ET AL., APPELLANTS

05.439 v.

 

RICK PERRY, GOVERNOR OF TEXAS, ET AL.

ON APPEALS FROM THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF TEXAS

[June 28, 2006]

JUSTICE KENNEDY announced the judgment of the Court

and delivered the opinion of the Court with respect to

Parts II.A and III, an opinion with respect to Parts I and

IV, in which THE CHIEF JUSTICE and JUSTICE ALITO join,

an opinion with respect to Parts II.B and II.C, and an

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

2 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

 

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Opinion of KENNEDY, J.

SOUTER and JUSTICE GINSBURG join.

These four consolidated cases are appeals from a judgment

entered by the United States District Court for the

Eastern District of Texas. Convened as a three-judge

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

constitutional and statutory challenges to a 2003 enactment

of the Texas State Legislature that drew new district lines

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

Representatives. (Though appellants do not join each other

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

appellants collectively.) In 2004 the court entered judgment

for appellees and issued detailed findings of fact and

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

(per curiam). This Court vacated that decision and remanded

for consideration in light of Vieth v. Jubelirer, 541

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

reexamined appellants. political gerrymandering claims

and, in a second careful opinion, again held for the defendants.

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

These appeals followed, and we noted probable jurisdiction.

546 U. S. ___ (2005).

Appellants contend the new plan is an unconstitutional

partisan gerrymander and that the redistricting statewide

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

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

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

districts violates the First Amendment and the Equal

Protection Clause of the Fourteenth Amendment. The

three-judge panel, consisting of Circuit Judge

Higginbotham and District Judges Ward and Rosenthal,

brought considerable experience and expertise to the

instant case, based on their knowledge of the State.s people,

history, and geography. Judges Higginbotham and

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

drew the plan the Texas Legislature replaced in 2003, so

they were intimately familiar with the history and intricaCite

as: 548 U. S. ____ (2006) 3

Opinion of KENNEDY, J.

cies of the cases.

We affirm the District Court.s dispositions on the statewide

political gerrymandering claims and the Voting

Rights Act claim against District 24. We reverse and

remand on the Voting Rights Act claim with respect to

District 23. Because we do not reach appellants. racebased

equal protection claim or the political gerrymandering

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

District Court on these claims.

I

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

recount the history of the litigation and recent districting

in Texas. An appropriate starting point is not the reapportionment

in 2000 but the one from the census in 1990.

The 1990 census resulted in a 30-seat congressional

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

representatives allotted to the State in the decade before.

See Bush v. Vera, 517 U. S. 952, 956.957 (1996). In 1991

the Texas Legislature drew new district lines. At the

time, the Democratic Party controlled both houses in the

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

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

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

post-Reconstruction dominance over the Republican Party

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

the statewide vote, while the Democrats received 51%.

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

in No. 05.204, etc., p. 2 (hereinafter Brief for State

Appellees).

Faced with a Republican opposition that could be moving

toward majority status, the state legislature drew a

congressional redistricting plan designed to favor Democratic

candidates. Using then-emerging computer technology

to draw district lines with artful precision, the legislature

enacted a plan later described as the .shrewdest

4 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

 

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Opinion of KENNEDY, J.

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

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

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

1991 plan was enacted by the state legislature, Democratic

Congressman Martin Frost was acknowledged as its

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

constructs democratic districts .with incredibly convoluted

lines. and packs .heavily Republican. suburban areas into

just a few districts.. Henderson, supra, at 767, n. 47 (quoting

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

2004, p. 1510 (2003) (hereinafter 2004 Almanac)).

Voters who considered this unfair and unlawful treatment

sought to invalidate the 1991 plan as an unconstitutional

partisan gerrymander, but to no avail. See Terrazas

 

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

 

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

1991 plan realized the hopes of Democrats and the fears of

Republicans with respect to the composition of the Texas

congressional delegation. The 1990.s were years of continued

growth for the Texas Republican Party, and by the

end of the decade it was sweeping elections for statewide

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

statewide elections in 2000, the Republicans only won 13

congressional seats to the Democrats. 17. Henderson,

supra, at 763.

These events likely were not forgotten by either party

when it came time to draw congressional districts in conformance

with the 2000 census and to incorporate two

additional seats for the Texas delegation. The Republican

Party controlled the governorship and the State Senate; it

did not yet control the State House of Representatives,

however. As so constituted, the legislature was unable to

pass a redistricting scheme, resulting in litigation and the

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

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

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

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

Opinion of KENNEDY, J.

14, 2001) (per curiam), summarily aff.d, 536 U. S. 919

(2002), App. E to Juris. Statement in No. 05.276, p. 202a.

The congressional districting map resulting from the

Balderas litigation is known as Plan 1151C.

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

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

court that issued the judgment now under review. Thus

we have the benefit of their candid comments concerning

the redistricting approach taken in the Balderas litigation.

Conscious that the primary responsibility for drawing

congressional districts is given to political branches of

government, and hesitant to .und[o] the work of one political

party for the benefit of another,. the three-judge Bal-

deras court sought to apply .only .neutral. redistricting

standards. when drawing Plan 1151C. Henderson, 399

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

principles.such as placing the two new seats in highgrowth

areas, following county and voting precinct lines,

and avoiding the pairing of incumbents..the drawing

ceased, leaving the map free of further change except to

conform it to one-person, one-vote.. Ibid. Under Plan

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

to-15 Democratic majority in the Texas delegation, compared

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

statewide office in 2000. Id., at 763.764. Reflecting on

the Balderas Plan, the District Court in Henderson was

candid to acknowledge .[t]he practical effect of this effort

was to leave the 1991 Democratic Party gerrymander

largely in place as a .legal. plan.. Id., at 768.

 

The continuing influence of a court-drawn map that

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

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

control of the State House of Representatives and, thus,

both houses of the legislature. The Republicans in the

legislature .set out to increase their representation in the

congressional delegation.. Session, 298 F. Supp. 2d, at

6 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

 

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Opinion of KENNEDY, J.

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

the single-minded purpose of the Texas Legislature in

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

After a protracted partisan struggle, during which Democratic

legislators left the State for a time to frustrate quorum

requirements, the legislature enacted a new congressional

districting map in October 2003. It is called Plan

1374C. The 2004 congressional elections did not disappoint

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

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

statewide races against the Democrats. 41%. Henderson,

supra, at 764.

Soon after Texas enacted Plan 1374C, appellants challenged

it in court, alleging a host of constitutional and

statutory violations. Initially, the District Court entered

judgment against appellants on all their claims. See

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

concurring in part and dissenting in part). Appellants

sought relief here and, after their jurisdictional statements

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

order vacating the District Court judgment and remanding

for consideration in light of Vieth was issued just

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

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

scope of its mandate was limited to questions of political

gerrymandering, again rejected appellants. claims. Hen-

derson, 399 F. Supp. 2d, at 777.778. Judge Ward would

have granted relief under the theory.presented to the

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

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

but he concluded such an argument was not within

the scope of the remand mandate. Id., at 779, 784.785

(specially concurring).

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

Opinion of the Court

II

A

Based on two similar theories that address the middecade

character of the 2003 redistricting, appellants now

argue that Plan 1374C should be invalidated as an unconstitutional

partisan gerrymander. In Davis v. Bandemer,

 

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

challenge to a political gerrymander presents a justiciable

case or controversy, id., at 118.127, but there was disagreement

over what substantive standard to apply. Compare

id., at 127.137 (plurality opinion) with id., at 161.162

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

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

Jubelirer would have held such challenges to be nonjusticiable

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

541 U. S., at 306 (KENNEDY, J., concurring in judgment); id.,

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

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

revisit the justiciability holding but do proceed to examine

whether appellants. claims offer the Court a manageable,

reliable measure of fairness for determining whether a

partisan gerrymander violates the Constitution.

B

Before addressing appellants. arguments on mid-decade

redistricting, it is appropriate to note some basic principles

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

in determining how congressional districts are to be

drawn. Article I of the Constitution provides:

.Section 2. The House of Representatives shall be

composed of Members chosen every second Year by

the People of the several States . . . .

. . . . .

.Section 4. The Times, Places and Manner of holding

Elections for . . . Representatives, shall be prescribed

in each State by the Legislature thereof; but

8 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

 

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Opinion of KENNEDY, J.

the Congress may at any time by Law make or alter

such Regulations . . . ..

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

primary responsibility for apportionment of their federal

congressional . . . districts.. Growe v. Emison, 507 U. S. 25,

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

(.[R]eapportionment is primarily the duty and responsibility

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

Holm, 285 U. S. 355, 366.367 (1932) (reapportionment

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

the text of the Constitution also provides, may set further

requirements, and with respect to districting it has generally

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

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

U. S. 254, 266.267 (2003). But see id., at 275 (plurality

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

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

mid-decade redistricting to change districts drawn earlier

in conformance with a decennial census, the Constitution

and Congress state no explicit prohibition.

Although the legislative branch plays the primary role

in congressional redistricting, our precedents recognize an

important role for the courts when a districting plan violates

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

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

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

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

the District Court found it necessary to draw a redistricting

map on its own. That the federal courts sometimes

are required to order legislative redistricting, however, does

not shift the primary locus of responsibility.

.Legislative bodies should not leave their reapportionment

tasks to the federal courts; but when those

with legislative responsibilities do not respond, or the

imminence of a state election makes it impractical for

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

Opinion of KENNEDY, J.

them to do so, it becomes the .unwelcome obligation. of

the federal court to devise and impose a reapportionment

plan pending later legislative action.. Wise v.

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

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

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

expertise, and quite apart from the difficulties a court

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

414.415, the obligation placed upon the Federal Judiciary

is unwelcome because drawing lines for congressional

districts is one of the most significant acts a State can

perform to ensure citizen participation in republican selfgovernance.

That Congress is the federal body explicitly

given constitutional power over elections is also a noteworthy

statement of preference for the democratic process. As

the Constitution vests redistricting responsibilities foremost

in the legislatures of the States and in Congress, a

lawful, legislatively enacted plan should be preferable to

one drawn by the courts.

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

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

of impropriety should attach to the legislative

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

298 F. Supp. 2d, at 460.461, our decisions have assumed

that state legislatures are free to replace court-mandated

remedial plans by enacting redistricting plans of their

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

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

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

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

Underlying this principle is the assumption that to prefer

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

contrary to the ordinary and proper operation of the political

process. Judicial respect for legislative plans, however,

cannot justify legislative reliance on improper criteria for

10 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

 

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Opinion of KENNEDY, J.

districting determinations. With these considerations in

mind, we next turn to consider appellants. challenges to

the new redistricting plan.

C

Appellants claim that Plan 1374C, enacted by the Texas

Legislature in 2003, is an unconstitutional political gerrymander.

A decision, they claim, to effect mid-decennial

redistricting, when solely motivated by partisan objectives,

violates equal protection and the First Amendment

because it serves no legitimate public purpose and burdens

one group because of its political opinions and affiliation.

The mid-decennial nature of the redistricting, appellants

say, reveals the legislature.s sole motivation. Unlike

Vieth, where the legislature acted in the context of a required

decennial redistricting, the Texas Legislature

voluntarily replaced a plan that itself was designed to

comply with new census data. Because Texas had .no

constitutional obligation to act at all. in 2003, Brief for

Appellant Jackson et al. in No. 05.276, p. 26, it is hardly

surprising, according to appellants, that the District Court

found .[t]here is little question but that the single-minded

purpose of the Texas Legislature in enacting Plan 1374C

was to gain partisan advantage. for the Republican majority

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

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

mid-decade redistricting plan is adopted solely for partisan

motivations is a salutary one, in appellants. view, for

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

discriminatory effects of partisan gerrymandering.a

matter that has proved elusive since Bandemer. See

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

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

not quibble with the drawing of individual district lines

but challenges the decision to redistrict at all.

For a number of reasons, appellants. case for adopting

Cite as: 548 U. S. ____ (2006) 11

Opinion of KENNEDY, J.

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

dispute the assertion that partisan gain was the

.sole. motivation for the decision to replace Plan 1151C.

There is some merit to that criticism, for the pejorative

label overlooks indications that partisan motives did not

dictate the plan in its entirety. The legislature does seem

to have decided to redistrict with the sole purpose of

achieving a Republican congressional majority, but partisan

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

Court found, the contours of some contested district lines

were drawn based on more mundane and local interests.

Session, supra, at 472.473. The state appellees also contend,

and appellants do not contest, that a number of linedrawing

requests by Democratic state legislators were

honored. Brief for State Appellees 34.

Evaluating the legality of acts arising out of mixed

motives can be complex, and affixing a single label to

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

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

Moore, 547 U. S. ___, ___ (2006) (slip op., at 9.10). When

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

manifold choices, the task can be even more daunting.

Appellants. attempt to separate the legislature.s sole

motive for discarding Plan 1151C from the complex of

choices it made while drawing the lines of Plan 1374C

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

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

legislature.s unlawful motive but does so without reference

to the content of the legislation enacted.

Even setting this skepticism aside, a successful claim

attempting to identify unconstitutional acts of partisan

gerrymandering must do what appellants. sole-motivation

theory explicitly disavows: show a burden, as measured by

a reliable standard, on the complainants. representational

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

test proposed in Vieth that is markedly similar to the one

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Opinion of KENNEDY, J.

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

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

but cannot dictate the outcome of, the districting process,

so too can partisanship be a permissible consideration in

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

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

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

292.295 (plurality opinion), and id., at 307.308

(KENNEDY, J., concurring in judgment).

The sole-intent standard offered here is no more compelling

when it is linked to the circumstance that Plan 1374C

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

Constitution and our case law indicate there is nothing

inherently suspect about a legislature.s decision to replace

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

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

alone is no sure indication of unlawful political gerrymanders.

Under appellants. theory, a highly effective partisan

gerrymander that coincided with decennial redistricting

would receive less scrutiny than a bumbling, yet solely

partisan, mid-decade redistricting. More concretely, the

test would leave untouched the 1991 Texas redistricting,

which entrenched a party on the verge of minority status,

while striking down the 2003 redistricting plan, which

resulted in the majority Republican Party capturing a

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

similarly effective power plays in such different ways does

not have the reliability appellants ascribe to it.

Furthermore, compared to the map challenged in Vieth,

which led to a Republican majority in the congressional

delegation despite a Democratic majority in the statewide

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

more congruent to statewide party power. To be sure,

there is no constitutional requirement of proportional

representation, and equating a party.s statewide share of

the vote with its portion of the congressional delegation is

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

Opinion of KENNEDY, J.

a rough measure at best. Nevertheless, a congressional

plan that more closely reflects the distribution of state

party power seems a less likely vehicle for partisan discrimination

than one that entrenches an electoral minority.

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

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

the plan that survived in Vieth and the two previous Texas

plans.all three of which would pass the modified soleintent

test that Plan 1374C would fail.

A brief for one of the amici proposes a symmetry standard

that would measure partisan bias by .compar[ing]

how both parties would fare hypothetically if they each (in

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

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

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

would fare better than the minority party should their

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

proposed standard does not compensate for appellants.

failure to provide a reliable measure of fairness. The

existence or degree of asymmetry may in large part depend

on conjecture about where possible vote-switchers

will reside. Even assuming a court could choose reliably

among different models of shifting voter preferences, we

are wary of adopting a constitutional standard that invalidates

a map based on unfair results that would occur in a

hypothetical state of affairs. Presumably such a challenge

could be litigated if and when the feared inequity arose.

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

(1967). More fundamentally, the counterfactual plaintiff

would face the same problem as the present, actual appellants:

providing a standard for deciding how much partisan

dominance is too much. Without altogether discounting its

utility in redistricting planning and litigation, we conclude

asymmetry alone is not a reliable measure of unconstitutional

partisanship.

In the absence of any other workable test for judging

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Opinion of KENNEDY, J.

partisan gerrymanders, one effect of appellants. focus on

mid-decade redistricting could be to encourage partisan

excess at the outset of the decade, when a legislature

redistricts pursuant to its decennial constitutional duty

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

mid-decade redistricting were barred or at least subject to

close judicial oversight, opposition legislators would also

have every incentive to prevent passage of a legislative

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

a better deal than negotiation with their political rivals.

See Henderson, 399 F. Supp. 2d, at 776.777.

D

Appellants. second political gerrymandering theory is

that mid-decade redistricting for exclusively partisan

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

They observe that population variances in legislative

districts are tolerated only if they .are unavoidable despite

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

which justification is shown.. Karcher v. Daggett, 462

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

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

Working from this unchallenged premise, appellants

contend that, because the population of Texas has shifted

since the 2000 census, the 2003 redistricting, which relied

on that census, created unlawful interdistrict population

variances.

To distinguish the variances in Plan 1374C from those

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

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

mid-decade nature of the redistricting and its partisan

motivation. Appellants do not contend that a decennial

redistricting plan would violate equal representation

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

had shifted substantially. As they must, they concede that

States operate under the legal fiction that their plans are

Cite as: 548 U. S. ____ (2006) 15

Opinion of KENNEDY, J.

constitutionally apportioned throughout the decade, a

presumption that is necessary to avoid constant redistricting,

with accompanying costs and instability. See Georgia

 

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

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

by a court in 2001 using 2000 population data also enjoys

the benefit of the so-called legal fiction, presumably because

belated court-drawn plans promote other important

interests, such as ensuring a plan complies with the Constitution

and voting rights legislation.

In appellants. view, however, this fiction should not

provide a safe harbor for a legislature that enacts a voluntary,

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

thus . .unnecessarily. . creating population variance .when

there was no legal compulsion. to do so. Brief for Appellant

Travis County et al. in No. 05.254, p. 18. This is

particularly so, appellants say, when a legislature acts

because of an exclusively partisan motivation. Under

appellants. theory this improper motive at the outset

seems enough to condemn the map for violating the equalpopulation

principle. For this reason, appellants believe

that the State cannot justify under Karcher v. Daggett the

population variances in Plan 1374C because they are the

product of partisan bias and the desire to eliminate all

competitive districts.

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

on whether a redistricting furthers equal-population

principles but rather on the justification for redrawing a

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

respect appellants. approach merely restates the question

whether it was permissible for the Texas Legislature to

redraw the districting map. Appellants. answer, which

mirrors their attack on mid-decennial redistricting solely

motivated by partisan considerations, is unsatisfactory for

reasons we have already discussed.

Appellants also contend that the legislature intention16

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Opinion of KENNEDY, J.

ally sought to manipulate population variances when it

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

finding to that effect, and appellants present no specific

evidence to support this serious allegation of bad faith.

Because appellants have not demonstrated that the legislature

.s decision to enact Plan 1374C constitutes a violation

of the equal-population requirement, we find unavailing

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

2d 1320 (ND Ga. 2004) (per curiam), summarily aff.d, 542

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

the Georgia Legislature.s decennial redistricting of its

State Senate and House of Representatives districts and

found deviations from the equal-population requirement.

The District Court then held the objectives of the drafters,

which included partisan interests along with regionalist

bias and inconsistent incumbent protection, did not justify

those deviations. 300 F. Supp. 2d, at 1351.1352. The

Larios holding and its examination of the legislature.s

motivations were relevant only in response to an equalpopulation

violation, something appellants have not established

here. Even in addressing political motivation as a

justification for an equal-population violation, moreover,

Larios does not give clear guidance. The panel explained

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

advantage alone may justify deviations in population.

because the plans were .plainly unlawful. and any partisan

motivations were .bound up inextricably. with other

clearly rejected objectives. Id., at 1352.

In sum, we disagree with appellants. view that a legislature

.s decision to override a valid, court-drawn plan middecade

is sufficiently suspect to give shape to a reliable

standard for identifying unconstitutional political gerrymanders.

We conclude that appellants have established

no legally impermissible use of political classifications.

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

granted for their statewide challenge.

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

Opinion of the Court

III

Plan 1374C made changes to district lines in south and

west Texas that appellants challenge as violations of §2 of

the Voting Rights Act and the Equal Protection Clause of

the Fourteenth Amendment. The most significant

changes occurred to District 23, which.both before and

after the redistricting.covers a large land area in west

Texas, and to District 25, which earlier included Houston

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

Austin to the Rio Grande Valley.

After the 2002 election, it became apparent that District

23 as then drawn had an increasingly powerful Latino

population that threatened to oust the incumbent Republican,

Henry Bonilla. Before the 2003 redistricting, the

Latino share of the citizen voting-age population was

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

with each successive election since 1996. Session, 298

F. Supp. 2d, at 488.489. In 2002, Bonilla captured only

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

Faced with this loss of voter support, the legislature acted

to protect Bonilla.s incumbency by changing the lines.

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

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

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

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

previously rested entirely within District 23; under the

new plan, nearly 100,000 people were shifted into

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

county, approximately 93,000 people, remained in District

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

added voters in counties comprising a largely Anglo, Republican

area in central Texas. Id., at 488. In the newly

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

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

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

 

at 489.

18 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

 

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Opinion of the Court

These changes required adjustments elsewhere, of

course, so the State inserted a third district between the

two districts to the east of District 23, and extended all

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

narrow strip that winds its way from McAllen and the

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

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

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

resides in split counties at the northern and southern

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

which includes McAllen, and half are in Travis County,

which includes parts of Austin. Ibid. The Latinos in

District 25, comprising 55% of the district.s citizen votingage

population, are also mostly divided between the two

distant areas, north and south. Id., at 499. The Latino

communities at the opposite ends of District 25 have

divergent .needs and interests,. id., at 502, owing to .differences

in socio-economic status, education, employment,

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

The District Court summed up the purposes underlying

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

Congressional District 23 served the dual goal of increasing

Republican seats in general and protecting Bonilla.s

incumbency in particular, with the additional political

nuance that Bonilla would be reelected in a district that

had a majority of Latino voting age population.although

clearly not a majority of citizen voting age population and

certainly not an effective voting majority.. Id., at 497.

The goal in creating District 25 was just as clear: .[t]o

avoid retrogression under §5. of the Voting Rights Act

given the reduced Latino voting strength in District 23.

Id., at 489.

A

The question we address is whether Plan 1374C violates

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

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

Opinion of the Court

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

that the political processes leading to nomination or

election in the State or political subdivision are not

equally open to participation by members of [a racial

group] in that its members have less opportunity than

other members of the electorate to participate in the

political process and to elect representatives of their

choice.. 42 U. S. C. §1973(b).

The Court has identified three threshold conditions for

establishing a §2 violation: (1) the racial group is . . .sufficiently

large and geographically compact to constitute a

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

group is . . .politically cohesive. . .; and (3) the majority

. . .vot[es] sufficiently as a bloc to enable it . . . usually to

defeat the minority.s preferred candidate.. . . Johnson v.

De Grandy, 512 U. S. 997, 1006.1007 (1994) (quoting

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

Gingles, 478 U. S. 30, 50.51 (1986))). These are the socalled

Gingles requirements.

If all three Gingles requirements are established, the

statutory text directs us to consider the .totality of circumstances

. to determine whether members of a racial

group have less opportunity than do other members of the

electorate. De Grandy, supra, at 1011.1012; see also

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

terms of the statutory standard .totality of circumstances.

require judicial interpretation. For this purpose, the

Court has referred to the Senate Report on the 1982

amendments to the Voting Rights Act, which identifies

factors typically relevant to a §2 claim, including:

.the history of voting-related discrimination in the

State or political subdivision; the extent to which voting

in the elections of the State or political subdivision

is racially polarized; the extent to which the State or

political subdivision has used voting practices or pro20

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PERRY

Opinion of the Court

cedures that tend to enhance the opportunity for discrimination

against the minority group . . . ; the extent

to which minority group members bear the effects

of past discrimination in areas such as education, employment,

and health, which hinder their ability to

participate effectively in the political process; the use

of overt or subtle racial appeals in political campaigns;

and the extent to which members of the minority

group have been elected to public office in the

jurisdiction. The Report notes also that evidence

demonstrating that elected officials are unresponsive

to the particularized needs of the members of the minority

group and that the policy underlying the

State.s or the political subdivision.s use of the contested

practice or structure is tenuous may have probative

value.. Gingles, supra, at 44.45 (citing S. Rep.

No. 97.417 (1982) (hereinafter Senate Report); pinpoint

citations omitted).

Another relevant consideration is whether the number

of districts in which the minority group forms an effective

majority is roughly proportional to its share of the population

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

The District Court.s determination whether the §2

requirements are satisfied must be upheld unless clearly

erroneous. See Gingles, supra, at 78.79. Where .the

ultimate finding of dilution. is based on .a misreading of

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

Grandy, supra, at 1022.

B

Appellants argue that the changes to District 23 diluted

the voting rights of Latinos who remain in the district.

Specifically, the redrawing of lines in District 23 caused

the Latino share of the citizen voting-age population to

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

that .Latino voting strength in Congressional District 23

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

Opinion of the Court

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

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

weakening amounts to vote dilution.

To begin the Gingles analysis, it is evident that the

second and third Gingles preconditions.cohesion among

the minority group and bloc voting among the majority

population.are present in District 23. The District Court

found .racially polarized voting. in south and west Texas,

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

492.493. The polarization in District 23 was especially

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

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

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

Issues in Texas Congressional Redistricting (Nov. 14,

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

projected results in new District 23 show that the Anglo

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

Latinos from electing the candidate of their choice in

the district. Session, supra, at 496.497. For all these

reasons, appellants demonstrated sufficient minority

cohesion and majority bloc voting to meet the second and

third Gingles requirements.

The first Gingles factor requires that a group be .sufficiently

large and geographically compact to constitute a

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

Latinos in District 23 could have constituted a majority of

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

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

for a citizen voting-age majority to lack real electoral

opportunity, the Latino majority in old District 23 did

possess electoral opportunity protected by §2.

While the District Court stated that District 23 had not

been an effective opportunity district under Plan 1151C, it

recognized the district was .moving in that direction..

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

Latino candidate of choice in District 23 won the majority

22 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

 

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Opinion of the Court

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

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

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

could not have prevailed without some Latino support,

limited though it was. State legislators changed District

23 specifically because they worried that Latinos would

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

Furthermore, to the extent the District Court suggested

that District 23 was not a Latino opportunity district in

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

it was incorrect. The circumstance that a group does not

win elections does not resolve the issue of vote dilution.

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

opportunity, not a guarantee of electoral success for minority-

preferred candidates of whatever race.. De Grandy,

 

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

Latino voter registration and overall population, Session,

 

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

dissenting in part), the concomitant rise in Latino voting

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

Latino candidate of choice in 2002, and the resulting

threat to the Bonilla incumbency, were the very reasons

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

redistricting prevented the immediate success of the

emergent Latino majority in District 23, there was a denial

of opportunity in the real sense of that term.

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

unquestionably not a Latino opportunity district.. Id., at

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

population in new District 23, but only in a hollow

sense, for the parties agree that the relevant numbers

must include citizenship. This approach fits the language

of §2 because only eligible voters affect a group.s opportunity

to elect candidates. In sum, appellants have established

that Latinos could have had an opportunity district

in District 23 had its lines not been altered and that they

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

Opinion of the Court

do not have one now.

Considering the district in isolation, the three Gingles

 

requirements are satisfied. The State argues, nonetheless,

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

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

.States retain broad discretion in drawing districts to

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

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

though. The Court has rejected the premise that a State

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

some individuals by providing greater opportunity to

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

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

black district somewhere else in the State.). As set

out below, these conflicting concerns are resolved by allowing

the State to use one majority-minority district to compensate

for the absence of another only when the racial

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

accommodated.

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

appellants show the possibility of creating a majorityminority

district that would include the Latinos in District

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

that .a §2 plaintiff has the right to be placed in a majorityminority

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

If the inclusion of the plaintiffs would necessitate the

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

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

drawing of district lines, .the first Gingles condition requires

the possibility of creating more than the existing

number of reasonably compact districts with a sufficiently

large minority population to elect candidates of its choice..

De Grandy, supra, at 1008.

The District Court found that the current plan contains

six Latino opportunity districts and that seven reasonably

compact districts could not be drawn. Appellant GI Forum

24 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

 

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Opinion of the Court

presented a plan with seven majority-Latino districts, but

the District Court found these districts were not reasonably

compact, in part because they took in .disparate and

distant communities.. Session, supra, at 491.492, and n.

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

court.s resolution of the conflicting evidence was not

clearly erroneous.

A problem remains, though, for the District Court failed

to perform a comparable compactness inquiry for Plan

1374C as drawn. De Grandy requires a comparison between

a challenger.s proposal and the .existing number of

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

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

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

(KENNEDY, J., concurring). The noncompact district cannot,

however, remedy a violation elsewhere in the State.

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

.geographically compact. population. of the racial group,

.where that district sits, .there neither has been a wrong

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

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

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

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

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

reasonably compact, see Abrams, 521 U. S., at 91.92, the

creation of a noncompact district does not compensate for

the dismantling of a compact opportunity district.

THE CHIEF JUSTICE claims compactness should be only

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

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

part), but his approach comports neither with our precedents

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

De Grandy expressly stated that the first Gingles prong

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

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

a noncompact district as a possible remedy for a §2 violaCite

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

Opinion of the Court

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

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

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

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

through the creation of a noncompact district. Ibid. Shaw

II also cannot be distinguished based on the relative location

of the remedial district as compared to the district of

the alleged violation. The remedial district in Shaw II had

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

the Court stated .[w]e do not think this degree of incorporation

could mean [the remedial district] substantially

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

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

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

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

overlap here is not substantially different, as the majority

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

new District 23, but no longer have the opportunity to

elect their candidate of choice.

Apart from its conflict with De Grandy and Shaw II,

THE CHIEF JUSTICE.s approach has the deficiency of creating

a one-way rule whereby plaintiffs must show compactness

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

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

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

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

that could form a majority in a reasonably compact district.

Post, at 15. If, however, a noncompact district cannot

make up for the lack of a compact district, then this is

equally true whether the plaintiff or the State proposes

the noncompact district.

The District Court stated that Plan 1374C created .six

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

but it failed to decide whether District 25 was reasonably

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

mile gap between the Latino communities in District 25,

26 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

 

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Opinion of the Court

and a similarly large gap between the needs and interests

of the two groups. Id., at 502. After making these observations,

however, it did not make any finding about compactness.

Id., at 502.504. It ruled instead that, despite

these concerns, District 25 would be an effective Latino

opportunity district because the combined voting strength

of both Latino groups would allow a Latino-preferred

candidate to prevail in elections. Ibid. The District

Court.s general finding of effectiveness cannot substitute

for the lack of a finding on compactness, particularly

because the District Court measured effectiveness simply

by aggregating the voting strength of the two groups of

Latinos. Id., at 503.504. Under the District Court.s

approach, a district would satisfy §2 no matter how noncompact

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

group, added together, could control election outcomes.

The District Court did evaluate compactness for the

purpose of deciding whether race predominated in the

drawing of district lines. The Latinos in the Rio Grande

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

communities of interest,. with .differences in socioeconomic

status, education, employment, health, and other

characteristics.. Id., at 512. The court.s conclusion that

the relative smoothness of the district lines made the

district compact, despite this combining of discrete communities

of interest, is inapposite because the court analyzed

the issue only for equal protection purposes. In the

equal protection context, compactness focuses on the

contours of district lines to determine whether race was

the predominant factor in drawing those lines. See Miller

 

v. Johnson, 515 U. S. 900, 916.917 (1995). Under §2, by

contrast, the injury is vote dilution, so the compactness

inquiry embraces different considerations. .The first

Gingles condition refers to the compactness of the minority

population, not to the compactness of the contested district.

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

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

Opinion of the Court

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

to show a violation of equal protection, .which

concerns the shape or boundaries of a district, differs from

§2 compactness, which concerns a minority group.s compactness

.); Shaw II, supra, at 916 (the inquiry under §2 is

whether .the minority group is geographically compact.

(internal quotation marks omitted)).

While no precise rule has emerged governing §2 compactness,

the .inquiry should take into account .traditional

districting principles such as maintaining communities of

interest and traditional boundaries.. . Abrams, supra, at

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

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

and apparently isolated minority communities. is not

reasonably compact). The recognition of nonracial communities

of interest reflects the principle that a State may

not .assum[e] from a group of voters. race that they .think

alike, share the same political interests, and will prefer

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

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

absence of this prohibited assumption, there is no basis to

believe a district that combines two far-flung segments of

a racial group with disparate interests provides the opportunity

that §2 requires or that the first Gingles condition

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

prevent discrimination in the exercise of the electoral

franchise and to foster our transformation to a society that

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

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

We do a disservice to these important goals by failing to

account for the differences between people of the same

race.

While the District Court recognized the relevant differences,

by not performing the compactness inquiry it failed

to account for the significance of these differences under

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

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Opinion of the Court

the different characteristics, needs, and interests of the

Latino community near the Mexican border and the one in

and around Austin are well supported and uncontested.

Legitimate yet differing communities of interest should

not be disregarded in the interest of race. The practical

consequence of drawing a district to cover two distant,

disparate communities is that one or both groups will be

unable to achieve their political goals. Compactness is,

therefore, about more than .style points,. post, at 3 (opinion

of ROBERTS, C. J.); it is critical to advancing the ultimate

purposes of §2, ensuring minority groups equal

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

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

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

difficult to understand why a plaintiff would have to propose

a compact district to make out a §2 claim.) As witnesses

who know the south and west Texas culture and

politics testified, the districting in Plan 1374C .could

make it more difficult for thinly financed Latino-preferred

candidates to achieve electoral success and to provide

adequate and responsive representation once elected..

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

(Elected officials from the region .testified that the size

and diversity of the newly-configured districts could make

it more difficult for the constituents in the Rio Grande

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

the District Court.s finding that the groups. combined

voting strength would enable them to elect a candidate

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

accept that in some cases members of a racial group in

different areas.for example, rural and urban communities

.could share similar interests and therefore form a

compact district if the areas are in reasonably close proximity.

See Abrams, supra, at 111.112 (BREYER, J., dissenting).

When, however, the only common index is race

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

Cite as: 548 U. S. ____ (2006) 29

Opinion of the Court

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

We emphasize it is the enormous geographical distance

separating the Austin and Mexican-border communities,

coupled with the disparate needs and interests of these

populations.not either factor alone.that renders District

25 noncompact for §2 purposes. The mathematical possibility

of a racial bloc does not make a district compact.

Since District 25 is not reasonably compact, Plan 1374C

contains only five reasonably compact Latino opportunity

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

The District Court did not find, and the State does

not contend, that any of the Latino opportunity districts in

Plan 1151C are noncompact. Contrary to THE CHIEF

JUSTICE.s suggestion, post, at 10.11, moreover, the Latino

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

geographic proximity than is the Latino population in new

District 25. More importantly, there has been no contention

that different pockets of the Latino population in old

District 23 have divergent needs and interests, and it is

clear that, as set out below, the Latino population of District

23 was split apart particularly because it was becoming

so cohesive. The Latinos in District 23 had found an

efficacious political identity, while this would be an entirely

new and difficult undertaking for the Latinos in

District 25, given their geographic and other differences.

Appellants have thus satisfied all three Gingles requirements

as to District 23, and the creation of new

District 25 does not remedy the problem.

C

We proceed now to the totality of the circumstances, and

first to the proportionality inquiry, comparing the percentage

of total districts that are Latino opportunity districts

with the Latino share of the citizen voting-age population.

As explained in De Grandy, proportionality is .a

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

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Opinion of the Court

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

States in complying with §2. Id., at 1017.1018; see also

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

always relevant evidence in determining vote dilution, but

is never itself dispositive.); id., at 1027.1028 (KENNEDY,

J., concurring in part and concurring in judgment) (proportionality

has .some relevance,. though .placing undue

emphasis upon proportionality risks defeating the goals

underlying the Voting Rights Act.). If proportionality

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

premise of highly suspect validity: that in any given voting

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

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

of the same minority class.. Id., at 1019; see also Shaw II,

 

517 U. S., at 916.918.

The State contends that proportionality should be decided

on a regional basis, while appellants say their claim

requires the Court to conduct a statewide analysis. In De

Grandy, the plaintiffs .passed up the opportunity to frame

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

1022. Based on the parties. apparent agreement that the

proper frame of reference was the Dade County area, the

Court used that area to decide proportionality. Id., at

1022.1023. In these cases, on the other hand, appellants

allege an .injury to African American and Hispanic voters

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

356 (ED Tex.), pp. 1.2; see also First Amended Complaint

in Civ. Action No. 2:03.354 (ED Tex.), pp. 1, 5, 7; Plaintiff

.s First Amended Complaint in Civ. Action No.

2:03cv354 etc. (ED Tex.), pp. 4.5. The District Court,

moreover, expressly considered the statewide proportionality

argument. As a result, the question of the proper

geographic scope for assessing proportionality now presents

itself.

We conclude the answer in these cases is to look at

proportionality statewide. The State contends that the

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

Opinion of the Court

seven districts in south and west Texas correctly delimit

the boundaries for proportionality because that is the only

area of the State where reasonably compact Latino opportunity

districts can be drawn. This argument, however,

misunderstands the role of proportionality. We have

already determined, under the first Gingles factor, that

another reasonably compact Latino district can be drawn.

The question now is whether the absence of that additional

district constitutes impermissible vote dilution.

This inquiry requires an . .intensely local appraisal. . of the

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

Rogers v. Lodge, 458 U. S. 613, 622 (1982)); see also

Gingles, supra, at 101 (O.Connor, J., concurring in judgment).

A local appraisal is necessary because the right to

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

group,. but rather to .its individual members.. Shaw II,

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

some members of a racial group against the rights of other

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

Shaw II, supra, at 916.918. The question is therefore not

.whether line-drawing in the challenged area as a whole

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

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

voting strength of the Latinos in District 23.

The role of proportionality is not to displace this local

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

some against the rights of others. Instead, it provides

some evidence of whether .the political processes leading

to nomination or election in the State or political subdivision

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

§1973(b). For this purpose, the State.s seven-district area

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

eight districts. Appellants have alleged statewide vote

dilution based on a statewide plan, so the electoral opportunities

of Latinos across the State can bear on whether

the lack of electoral opportunity for Latinos in District 23

32 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

 

PERRY

Opinion of the Court

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

simply a consequence of the inevitable .win some, lose

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

the other factors in the totality of circumstances have been

characterized with reference to the State as a whole.

Gingles, supra, at 44.45 (listing Senate Report factors).

Particularly given the presence of racially polarized voting

.and the possible submergence of minority votes.

throughout Texas, it makes sense to use the entire State

in assessing proportionality.

Looking statewide, there are 32 congressional districts.

The five reasonably compact Latino opportunity districts

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

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

Forum claims, based on data from the 2004 American

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

Latinos constitute 24.5% of the statewide citizen votingage

population, but as this figure was neither available at

the time of the redistricting, nor presented to the District

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

Latinos are, therefore, two districts shy of proportional

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

De Grandy, 512 U. S., at 1017, n. 14, and .rough proportionality,

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

We need not decide whether the two-district deficit in

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

1374C.s disproportionality were deemed insubstantial,

that consideration would not overcome the other evidence

of vote dilution for Latinos in District 23. .[T]he degree of

probative value assigned to proportionality may vary with

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

convince us that there is a §2 violation.

District 23.s Latino voters were poised to elect their

candidate of choice. They were becoming more politically

active, with a marked and continuous rise in Spanishsurnamed

voter registration. See Lichtman Report, App.

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

Opinion of the Court

142.143. In successive elections Latinos were voting

against Bonilla in greater numbers, and in 2002 they

almost ousted him. Webb County in particular, with a

94% Latino population, spurred the incumbent.s near

defeat with dramatically increased turnout in 2002. See

2004 Almanac 1579. In response to the growing participation

that threatened Bonilla.s incumbency, the State

divided the cohesive Latino community in Webb County,

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

already a Latino opportunity district, and leaving the rest

in a district where they now have little hope of electing

their candidate of choice.

The changes to District 23 undermined the progress of a

racial group that has been subject to significant votingrelated

discrimination and that was becoming increasingly

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

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

would thwart the historical tendency to exclude Hispanics,

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

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

to whether the proposed districting would .remedy

the effects of past and present discrimination against

Mexican-Americans, and to bring the community into the

full stream of political life of the county and State by

encouraging their further registration, voting, and other

political activities. (citation and internal quotation marks

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

of discrimination against Latinos and Blacks in Texas,.

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

elaborated on this history with respect to electoral processes:

.Texas has a long, well-documented history of discrimination

that has touched upon the rights of African-

Americans and Hispanics to register, to vote, or to

participate otherwise in the electoral process. Devices

34 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

 

PERRY

Opinion of the Court

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

restrictive voter registration time periods are an unfortunate

part of this State.s minority voting rights

history. The history of official discrimination in the

Texas election process.stretching back to Reconstruction

.led to the inclusion of the State as a covered

jurisdiction under Section 5 in the 1975 amendments

to the Voting Rights Act. Since Texas became a

covered jurisdiction, the Department of Justice has

frequently interposed objections against the State and

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

1317 (SD Tex. 1994) (citations omitted).

See also Vera, 517 U. S., at 981.982; Regester, supra, at

767.769. In addition, the .political, social, and economic

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

sion, supra, at 492, may well .hinder their ability to participate

effectively in the political process,. Gingles, 478

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

Against this background, the Latinos. diminishing

electoral support for Bonilla indicates their belief he was

.unresponsive to the particularized needs of the members

of the minority group.. Ibid. (same). In essence the State

took away the Latinos. opportunity because Latinos were

about to exercise it. This bears the mark of intentional

discrimination that could give rise to an equal protection

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

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

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

of the district lines was damaging to the Latinos in District

23. The State not only made fruitless the Latinos.

mobilization efforts but also acted against those Latinos

who were becoming most politically active, dividing them

with a district line through the middle of Laredo.

Furthermore, the reason for taking Latinos out of District

23, according to the District Court, was to protect

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

Opinion of the Court

Congressman Bonilla from a constituency that was increasingly

voting against him. The Court has noted that

incumbency protection can be a legitimate factor in districting,

see Karcher v. Daggett, 462 U. S., at 740, but

experience teaches that incumbency protection can take

various forms, not all of them in the interests of the constituents.

If the justification for incumbency protection is

to keep the constituency intact so the officeholder is accountable

for promises made or broken, then the protection

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

other hand, incumbency protection means excluding some

voters from the district simply because they are likely to

vote against the officeholder, the change is to benefit the

officeholder, not the voters. By purposely redrawing lines

around those who opposed Bonilla, the state legislature

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

the realm of politics, cannot justify the effect on Latino

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

factor of whether .the policy underlying. the State.s action

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

considered in light of evidence suggesting that the State

intentionally drew District 23 to have a nominal Latino

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

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

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

favor of appellants. claim.

Contrary to THE CHIEF JUSTICE.s suggestion that we are

reducing the State.s needed flexibility in complying with

§2, see post, at 15.16, the problem here is entirely of the

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

Latino opportunity district to protect the incumbent congressman

from the growing dissatisfaction of the cohesive

and politically active Latino community in the district.

The State then purported to compensate for this harm by

creating an entirely new district that combined two groups

of Latinos, hundreds of miles apart, that represent differ36

LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

 

PERRY

Opinion of the Court

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

held accountable for the effect of these choices in denying

equal opportunity to Latino voters. Notwithstanding

these facts, THE CHIEF JUSTICE places great emphasis on

the District Court.s statement that .new District 25 is .a

more effective Latino opportunity district than Congressional

District 23 had been.. . Post, at 2.3 (quoting Ses-

sion, 298 F. Supp. 2d, at 503). Even assuming this statement,

expressed in the context of summarizing witnesses.

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

points make it of minimal relevance. First, as previously

noted, the District Court measured the effectiveness of

District 25 without accounting for the detrimental consequences

of its compactness problems. Second, the District

Court referred only to how effective District 23 .had been,.

not to how it would operate today, a significant distinction

given the growing Latino political power in the district.

Based on the foregoing, the totality of the circumstances

demonstrates a §2 violation. Even assuming Plan 1374C

provides something close to proportional representation

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

the resulting vote dilution of a group that was beginning

to achieve §2.s goal of overcoming prior electoral discrimination

.cannot be sustained.

D

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

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

the use of race and politics in drawing that district violates

the First Amendment and equal protection. We also

need not confront appellants. claim of an equal protection

violation in the drawing of District 25. The districts in

south and west Texas will have to be redrawn to remedy

the violation in District 23, and we have no cause to pass

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

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

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

Opinion of KENNEDY, J.

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

to compensate for the loss of District 23 as a Latino opportunity

district, and there is no reason to believe District 25

will remain in its current form once District 23 is brought

into compliance with §2. We therefore vacate the District

Court.s judgment as to these claims.

IV

Appellants also challenge the changes to district lines in

the Dallas area, alleging they dilute African-American

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

Specifically, appellants contend that an African-American

minority effectively controlled District 24 under Plan

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

Before Plan 1374C was enacted, District 24 had elected

Anglo Democrat Martin Frost to Congress in every election

since 1978. Session, supra, at 481.482. Anglos were

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

citizen voting-age population, and third largest were

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

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

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

consistently for Frost. The new plan broke apart this

racially diverse district, assigning its pieces into several

other districts.

Accepting that African-Americans would not be a majority

of the single-member district they seek, and that African-

Americans do not vote cohesively with Hispanics,

Session, supra, at 484, appellants nonetheless contend

African-Americans had effective control of District 24. As

the Court has done several times before, we assume for

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

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

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

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

at 46.47, n. 12. Even on the assumption that the first

38 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

 

PERRY

Opinion of KENNEDY, J.

Gingles prong can accommodate this claim, however,

appellants must show they constitute .a sufficiently large

minority to elect their candidate of choice with the assistance

of cross-over votes.. Voinovich, supra, at 158 (emphasis

omitted).

The relatively small African-American population can

meet this standard, according to appellants, because they

constituted 64% of the voters in the Democratic primary.

Since a significant number of Anglos and Latinos voted for

the Democrat in the general election, the argument goes,

African-American control of the primary translated into

effective control of the entire election.

The District Court found, however, that African-

Americans could not elect their candidate of choice in the

primary. In support of this finding, it relied on testimony

that the district was drawn for an Anglo Democrat, the

fact that Frost had no opposition in any of his primary

elections since his incumbency began, and District 24.s

demographic similarity to another district where an African-

American candidate failed when he ran against an

Anglo. Session, 298 F. Supp. 2d, at 483.484. .In short,

that Anglo Democrats control this district is,. according to

the District Court, .the most rational conclusion.. Id., at

484.

Appellants fail to demonstrate clear error in this finding.

In the absence of any contested Democratic primary

in District 24 over the last 20 years, no obvious benchmark

exists for deciding whether African-Americans could

elect their candidate of choice. The fact that African-

Americans voted for Frost.in the primary and general

elections.could signify he is their candidate of choice.

Without a contested primary, however, it could also be

interpreted to show (assuming racial bloc voting) that

Anglos and Latinos would vote in the Democratic primary

in greater numbers if an African-American candidate of

choice were to run, especially given Texas. open primary

Cite as: 548 U. S. ____ (2006) 39

Opinion of KENNEDY, J.

system. The District Court heard trial testimony that

would support both explanations, and we cannot say that

it erred in crediting the testimony that endorsed the latter

interpretation. Compare App. 242.243 (testimony of

Tarrant County Precinct Administrator that Frost is the

.favored candidate of the African-American community.

and that he has gone unopposed in primary challenges

because he .serves [the African-American community.s]

interests.), with id., at 262.264 (testimony of Congresswoman

Eddie Bernice Johnson that District 24 was drawn

for an Anglo Democrat (Martin Frost, in particular) in

1991 by splitting a minority community), and id., at 277.

280 (testimony of State Representative Ron Wilson that

African-Americans did not have the ability to elect their

preferred candidate, particularly an African-American

candidate, in District 24 and that Anglo Democrats in

such .influence [d]istricts. were not fully responsive to the

needs of the African-American community).

The analysis submitted by appellants. own expert was

also inconsistent. Of the three elections for statewide

office he examined, in District 24 the African-American

candidate of choice would have won one, lost one, and in

the third the African-American vote was split. See Lichtman

Report, id., at 75.76, 92.96; State.s Exh. 20 in Civ.

Action No. 2:03.CV.354 (ED Tex.), p. 138; State.s Exh. 21

in Civ. Action No. 2:03.CV.354 (ED Tex.). The District

Court committed no clear error in rejecting this questionable

showing that African-Americans have the ability to

elect their candidate of choice in favor of other evidence

that an African-American candidate of choice would not

prevail. See Anderson v. Bessemer City, 470 U. S. 564, 574

(1985) (.Where there are two permissible views of the evidence,

the factfinder.s choice between them cannot be

clearly erroneous.).

That African-Americans had influence in the district,

Session, supra, at 485, does not suffice to state a §2 claim

40 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

 

PERRY

Opinion of KENNEDY, J.

in these cases. The opportunity .to elect representatives of

their choice,. 42 U. S. C. §1973(b), requires more than the

ability to influence the outcome between some candidates,

none of whom is their candidate of choice. There is no

doubt African-Americans preferred Martin Frost to the

Republicans who opposed him. The fact that African-

Americans preferred Frost to some others does not, however,

make him their candidate of choice. Accordingly, the

ability to aid in Frost.s election does not make the old

District 24 an African-American opportunity district for

purposes of §2. If §2 were interpreted to protect this kind

of influence, it would unnecessarily infuse race into virtually

every redistricting, raising serious constitutional

questions. See Georgia v. Ashcroft, 539 U. S., at 491

(KENNEDY, J., concurring).

Appellants respond by pointing to Georgia v. Ashcroft,

 

where the Court held that the presence of influence districts

is a relevant consideration under §5 of the Voting

Rights Act. The inquiry under §2, however, concerns the

opportunity .to elect representatives of their choice,. 42

U. S. C. §1973(b), not whether a change has the purpose or

effect of .denying or abridging the right to vote,. §1973c.

Ashcroft recognized the differences between these tests,

539 U. S., at 478, and concluded that the ability of racial

groups to elect candidates of their choice is only one factor

under §5, id., at 480. So while the presence of districts

.where minority voters may not be able to elect a candidate

of choice but can play a substantial, if not decisive,

role in the electoral process. is relevant to the §5 analysis,

id., at 482, the lack of such districts cannot establish a §2

violation. The failure to create an influence district in

these cases thus does not run afoul of §2 of the Voting

Rights Act.

Appellants do not raise a district-specific political gerrymandering

claim against District 24. Even if the claim

were cognizable as part of appellants. statewide challenge,

Cite as: 548 U. S. ____ (2006) 41

Opinion of KENNEDY, J.

it would be unpersuasive. Just as for the statewide claim,

appellants would lack any reliable measure of partisan

fairness. JUSTICE STEVENS suggests the burden on representational

rights can be measured by comparing the

success of Democrats in old District 24 with their success

in the new districts they now occupy. Post, at 31.32 (opinion

concurring in part and dissenting in part). There is no

reason, however, why the old district has any special claim

to fairness. In fact, old District 24, no less than the old

redistricting plan as a whole, was formed for partisan

reasons. See Session, 298 F. Supp. 2d, at 484; see also

Balderas v. Texas, Civ. Action No. 6:01CV158 (ED Tex.,

Nov. 14, 2001) (per curiam), summarily aff.d, 536 U. S. 919

(2002), App. E to Juris. Statement in No. 05.276, p. 208a.

Furthermore, JUSTICE STEVENS. conclusion that the State

has not complied with §5 of the Voting Rights Act, post, at

33.37.effectively overruling the Attorney General without

briefing, argument, or a lower court opinion on the

issue.does not solve the problem of determining a reliable

measure of impermissible partisan effect.

* * *

We reject the statewide challenge to Texas. redistricting

as an unconstitutional political gerrymander and the

challenge to the redistricting in the Dallas area as a violation

of §2 of the Voting Rights Act. We do hold that the

redrawing of lines in District 23 violates §2 of the Voting

Rights Act. The judgment of the District Court is affirmed

in part, reversed in part, and vacated in part, and the

cases are remanded for further proceedings.

It is so ordered.

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