VIETH et al. v. JUBELIRER, PRESIDENT OF THE PENNSYLVANIA SENATE, et al.

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VIETH et al. v. JUBELIRER, PRESIDENT OF THE
PENNSYLVANIA SENATE, et al.
appeal from the united states district court for the
middle district of pennsylvania
No. 02–1580. Argued December 10, 2003—Decided April 28, 2004
After Pennsylvania’s General Assembly adopted a congressional redis-
tricting plan, plaintiffs-appellants sued to enjoin the plan’s implementa-
tion, alleging, inter alia, that it constituted a political gerrymander in
violation of Article I and the Fourteenth Amendment’s Equal Protection
Clause. The three-judge District Court dismissed the gerrymandering
claim, and the plaintiffs appealed.
Held: The judgment is affirmed.
241 F. Supp. 2d 478, affirmed.
Justice Scalia, joined by The Chief Justice, Justice O’Connor,
and Justice Thomas, concluded that political gerrymandering claims
are nonjusticiable because no judicially discernible and manageable
standards for adjudicating such claims exist. They would therefore
overrule Davis v. Bandemer, 478 U. S. 109, in which this Court held that
political gerrymandering claims are justiciable, but could not agree upon
a standard for assessing political gerrymandering claims. Pp. 274–306.
(a) Political gerrymanders existed in colonial times and continued
through the framing. The Framers provided a remedy for the problem:
The Constitution gives state legislatures the initial power to draw fed-
eral election districts, but authorizes Congress to “make or alter” those
districts. U. S. Const., Art. I, § 4. In Bandemer, the Court held that
the Equal Protection Clause also grants judges the power—and duty—
to control that practice. Pp. 274–277.
(b) Neither Art. I, § 2 or § 4, nor the Equal Protection Clause, pro-
vides a judicially enforceable limit on the political considerations that
the States and Congress may take into account when districting.
Pp. 277–291.
(1) Among the tests for determining the existence of a “nonjusticia-
ble” or “political” question is a lack of judicially discoverable and man-
ageable standards for resolving the question. Baker v. Carr, 369 U. S.
186, 217. Because the Bandemer Court was “not persuaded” that there
are no such standards for deciding political gerrymandering cases, 478
U. S., at 123, such cases were justiciable. However, the six-Justice ma-
jority in Bandemer could not discern what the standards might be. For
the past 18 years, the lower courts have simply applied the Bandemer

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268 VIETH v. JUBELIRER
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plurality’s standard, almost invariably producing the same result as
would have obtained had the question been nonjusticiable: Judicial inter-
vention has been refused. Eighteen years of judicial effort with virtu-
ally nothing to show for it justifies revisiting whether the standard
promised by Bandemer exists. Pp. 277–281.
(2) The Bandemer plurality’s standard—that a political gerryman-
dering claim can succeed only where the plaintiffs show “both inten-
tional discrimination against an identifiable political group and an actual
discriminatory effect on that group,” 478 U. S., at 127—has proved un-
manageable in application. Because that standard was misguided when
proposed, has not been improved in subsequent application, and is not
even defended by the appellants in this Court, it should not be affirmed
as a constitutional requirement. Pp. 281–284.
(3) Appellants’ proposed two-pronged standard based on Art. I, § 2,
and the Equal Protection Clause is neither discernible nor manageable.
Appellants are mistaken when they contend that their intent prong
(“predominant intent”) is no different from that which this Court has
applied in racial gerrymandering cases. In those cases, the predomi-
nant intent test is applied to the challenged district in which the plain-
tiffs voted, see, e. g., Miller v. Johnson, 515 U. S. 900, whereas here
appellants assert that their test is satisfied only when partisan advan-
tage was the predominant motivation behind the entire statewide plan.
Vague as a predominant motivation test might be when used to evaluate
single districts, it all but evaporates when applied statewide. For this
and other reasons, the racial gerrymandering cases provide no comfort.
The effects prong of appellants’ proposal requires (1) that the plaintiffs
show that the rival party’s voters are systematically “packed” or
“cracked”; and (2) that the court be persuaded from the totality of the
circumstances that the map can thwart the plaintiffs’ ability to translate
a majority of votes into a majority of seats. This standard is not dis-
cernible because the Constitution provides no right to proportional rep-
resentation. Even were the standard discernible, it is not judicially
manageable. There is no effective way to ascertain a party’s majority
status, and, in any event, majority status in statewide races does not
establish majority status for particular district contests. Moreover,
even if a majority party could be identified, it would be impossible to
ensure that it won a majority of seats unless the States’ traditional elec-
tion structures were radically revised. Pp. 284–290.
(4) For many of the same reasons, Justice Powell’s Bandemer
standard—a totality-of-the-circumstances analysis that evaluates dis-
tricts with an eye to ascertaining whether the particular gerrymander
is not “fair”—must also be rejected. “Fairness” is not a judicially man-
ageable standard. Some criterion more solid and more demonstrably

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met than that is necessary to enable state legislatures to discern the
limits of their districting discretion, to meaningfully constrain the
courts’ discretion, and to win public acceptance for the courts’ intrusion
into a process that is the very foundation of democratic decision-
making. Pp. 290–291.
(c) Writing separately in dissent, Justices Stevens, Souter, and
Breyer each propose a different standard for adjudicating political ger-
rymandering claims. These proposed standards each have their own
deficiencies, but additionally fail for reasons identified with respect to
the standards proposed by appellants and those proposed in Bandemer.
Justice Kennedy concurs in the judgment, recognizing that there
are no existing manageable standards for measuring whether a political
gerrymander burdens the representational rights of a party’s voters.
Pp. 292–305.
(d) Stare decisis does not require that Bandemer be allowed to stand.
Stare decisis claims are at their weakest with respect to a decision inter-
preting the Constitution, particularly where there has been no reliance
on that decision. Pp. 305–306.
Justice Kennedy, while agreeing that appellants’ complaint must be
dismissed, concluded that all possibility of judicial relief should not be
foreclosed in cases such as this because a limited and precise rationale
may yet be found to correct an established constitutional violation.
Courts confront two obstacles when presented with a claim of injury
from partisan gerrymandering. First is the lack of comprehensive and
neutral principles for drawing electoral boundaries. No substantive
definition of fairness in districting commands general assent. Second
is the absence of rules to limit and confine judicial intervention. That
courts can grant relief in districting cases involving race does not an-
swer the need for fairness principles, since those cases involve sorting
permissible districting classifications from impermissible ones. Politics
is a different matter. Gaffney v. Cummings, 412 U. S. 735. A determi-
nation 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. The object of districting is to
establish “fair and effective representation for all citizens.” Reynolds
v. Sims, 377 U. S. 533. It might seem that courts could determine, by
the exercise of their judgment, whether political classifications are re-
lated to this object or instead burden representational rights. The lack,
however, of any agreed upon model of fair and effective representation
makes the analysis difficult. With no agreed upon substantive princi-
ples of fair districting, there is no basis on which to define clear, manage-

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270 VIETH v. JUBELIRER
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able, and politically neutral standards for measuring the burden a given
partisan classification imposes on representational rights. Suitable
standards for measuring this burden are critical to our intervention.
In this case, the plurality convincingly demonstrates that the standards
proposed in Davis v. Bandemer, 478 U. S. 109, by the parties here, and
by the dissents are either unmanageable or inconsistent with precedent,
or both. There are, then, weighty arguments for holding cases like
these to be nonjusticiable. However, they are not so compelling that
they require the Court now to bar all future partisan gerrymandering
claims. Baker v. Carr, 369 U. S. 186, makes clear that the more abstract
standards that guide analysis of all Fourteenth Amendment claims suf-
fice to ensure justiciability of claims like these. That a workable stand-
ard for measuring a gerrymander’s burden on representational rights
has not yet emerged does not mean that none will emerge in the future.
The Court should adjudicate only what is in the case before it. In this
case, absent a standard by which to measure the burden appellants claim
has been imposed on their representational rights, appellants’ evidence
at best demonstrates only that the legislature adopted political classifi-
cations. That describes no constitutional flaw under the governing
Fourteenth Amendment standard. Gaffney, supra, at 752. While the
equal protection standard continues to govern such cases, the First
Amendment may prove to offer a sounder and more prudential basis for
judicial intervention in political gerrymandering cases. First Amend-
ment analysis does not dwell on whether a generally permissible classi-
fication has been used for an impermissible purpose, but concentrates
on whether the legislation burdens the representational rights of the
complaining party’s voters for reasons of ideology, beliefs, or political
association. That analysis allows a pragmatic or functional assessment
that accords some latitude to the States. See, e. g., Eu v. San Francisco
County Democratic Central Comm., 489 U. S. 214. Pp. 306–317.
Scalia, J., announced the judgment of the Court and delivered an opin-
ion, in which Rehnquist, C. J., and O’Connor and Thomas, JJ., joined.
Kennedy, J., filed an opinion concurring in the judgment, post, p. 306.
Stevens, J., filed a dissenting opinion, post, p. 317. Souter, J., filed a
dissenting opinion, in which Ginsburg, J., joined, post, p. 343. Breyer,
J., filed a dissenting opinion, post, p. 355.
Paul M. Smith argued the cause for appellants. With him
on the briefs were Thomas J. Perrelli, Bruce V. Spiva, Sam
Hirsch, Daniel Mach, and Robert B. Hoffman.

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John P. Krill, Jr., argued the cause for appellee Jubelirer
et al. With him on the brief were Linda J. Shorey and Julia
M. Glencer. J. Bart DeLone, Senior Deputy Attorney Gen-
eral of Pennsylvania, argued the cause for appellee Corte´ s
et al. With him on the brief were D. Michael Fisher, Attor-
ney General, and John G. Knorr III, Chief Deputy Attor-
ney General.*
Justice Scalia announced the judgment of the Court and
delivered an opinion, in which The Chief Justice, 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 dis-
tricting constitutes an unconstitutional political gerryman-
der. 1 In Davis v. Bandemer, 478 U. S. 109 (1986), this Court
held that political gerrymandering claims are justiciable, but
*Briefs of amici curiae urging reversal were filed for the Texas House
Democratic Caucus et al. by J. Gerald Hebert and Pamela S. Karlan; for
the American Civil Liberties Union et al. by Burt Neuborne, Deborah
Goldberg, J. J. Gass, Steven R. Shapiro, Arthur N. Eisenberg, Laughlin
McDonald, and Neil Bradley; for Public Citizen et al. by Alan B. Mor-
rison, Amanda Frost, and Scott Nelson; for the Reform Institute et al. by
Daniel R. Ortiz and Trevor Potter; for JoAnn Erfer et al. by Einer El-
hauge; and for Pennsylvania State Senator Robert J. Mellow by Gladys
M. Brown.
Briefs of amici curiae were filed for Alabama State Senator Lowell
Barron et al. by James U. Blacksher and Robert D. Segall; for the Center
for Research into Governmental Processes, Inc., by Jamin B. Raskin; for
the DKT Liberty Project by Scott A. Sinder; for Bernard Grofman et al.
by H. Reed Witherby; and for Jack N. Rakove et al. by Joseph R. Guerra
and Stephen B. Kinnaird.
1 The term “political gerrymander” has been defined as “[t]he practice
of dividing a geographical area into electoral districts, often of highly ir-
regular shape, to give one political party an unfair advantage by diluting
the opposition’s voting strength.” Black’s Law Dictionary 696 (7th ed.
1999).

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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 Con-
gress, a decrease in 2 from the Commonwealth’s previous
delegation. Pennsylvania’s General Assembly 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 redis-
tricting plans elsewhere. The Republican members of Penn-
sylvania’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.
Plaintiffs, registered Democrats who vote in Pennsylvania,
brought suit in the United States District Court for the
Middle District of Pennsylvania, seeking to enjoin implemen-
tation of Act 1 under Rev. Stat. § 1979, 42 U. S. C. § 1983.
Defendants-appellees were the Commonwealth of Pennsyl-
vania and various executive and legislative officers respon-
sible for enacting or implementing Act 1. The complaint
alleged, among other things, that the legislation created mal-
apportioned districts, in violation of the one-person, one-vote
requirement of Article I, § 2, of the United States Constitu-
tion, and that it constituted a political gerrymander, in viola-
tion of Article I and the Equal Protection Clause of the Four-
teenth Amendment. With regard to the latter contention,
the complaint alleged that the districts created by Act 1
were “meandering and irregular,” and “ignor[ed] all tra-
ditional redistricting criteria, including the preservation of

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local government boundaries, solely for the sake of partisan
advantage.” Juris. Statement 136a, ¶ 22, 135a, ¶ 20.
A three-judge panel was convened pursuant to 28 U. S. C.
§ 2284. The defendants moved to dismiss. The District
Court granted the motion with respect to the political gerry-
mandering claim, and (on Eleventh Amendment grounds) all
claims against the Commonwealth; but it declined to dismiss
the apportionment claim as to other defendants. See Vieth
v. Pennsylvania, 188 F. Supp. 2d 532 (MD Pa. 2002) (Vieth
I). On trial of the apportionment claim, the District Court
ruled in favor of plaintiffs. See Vieth v. Pennsylvania, 195
F. Supp. 2d 672 (MD Pa. 2002) (Vieth II). It retained juris-
diction over the case pending the court’s review and approval
of a remedial redistricting plan. On April 18, 2002, Gover-
nor Schweiker signed into law Act No. 2002–34, Pa. Stat.
Ann., Tit. 25, § 3595.301 (Purdon Supp. 2003) (Act 34), a re-
medial plan that the Pennsylvania General Assembly had
enacted to cure the apportionment problem of Act 1.
Plaintiffs moved to impose remedial districts, arguing that
the District Court should not consider Act 34 to be a proper
remedial scheme, both because it was malapportioned, and
because it constituted an unconstitutional political gerryman-
der like its predecessor. The District Court denied this mo-
tion, concluding that the new districts were not malappor-
tioned, and rejecting the political gerrymandering claim for
the reasons previously assigned in Vieth I. Vieth v. Penn-
sylvania, 241 F. Supp. 2d 478, 484–485 (MD Pa. 2003) (Vieth
III). The plaintiffs appealed the dismissal of their Act 34
political gerrymandering claim.2 We noted probable juris-
diction. 539 U. S. 957 (2003).
2 The plaintiffs apparently never amended their complaint to allege that
Act 34 was a political gerrymander, yet the District Court’s decision in
Vieth III resolved that claim on the merits. Because subject-matter ju-
risdiction is not implicated and neither party has raised the point, we
assume that the District Court deemed the plaintiffs’ original complaint
to have been constructively amended.

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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 Phila-
delphia by refusing to allow it to merge or expand into sur-
rounding jurisdictions, and denying it additional representa-
tives. See E. Griffith, The Rise and Development of the
Gerrymander 26–28 (1974) (hereinafter Griffith). In 1732,
two members of His Majesty’s Council and the attorney gen-
eral and deputy inspector and comptroller general of affairs
of the Province of North Carolina reported that the Gover-
nor had proceeded to “divide old Precincts established by
Law, & to enact new Ones in Places, whereby his Arts he
has endeavoured to prepossess People in a future election
according to his desire, his Designs herein being . . . either
to endeavour by his means to get a Majority of his creatures
in the Lower House” or to disrupt the assembly’s proceed-
ings. 3 Colonial Records of North Carolina 380–381 (W.
Saunders ed. 1886); see also Griffith 29. The political gerry-
mander remained alive and well (though not yet known by
that name) at the time of the framing. There were allega-
tions that Patrick Henry attempted (unsuccessfully) to ger-
rymander James Madison out of the First Congress. See 2
W. Rives, Life and Times of James Madison 655, n. 1 (reprint
1970); Letter from Thomas Jefferson to William Short, Feb.
9, 1789, reprinted in 5 Works of Thomas Jefferson 451 (P.
Ford ed. 1904). 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 dis-
trict he was credited with forming was thought to resemble.
See Webster’s New International Dictionary 1052 (2d ed.
1945). “By 1840 the gerrymander was a recognized force in
party politics and was generally attempted in all legislation

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enacted for the formation of election districts. It was gen-
erally 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 leav-
ing in state legislatures the initial power to draw districts
for federal elections, permitted Congress to “make or alter”
those districts if it wished.3 Many objected to the congres-
sional oversight established by this provision. In the course
of the debates in the Constitutional Convention, Charles
Pinckney and John Rutledge moved to strike the relevant
language. James Madison responded in defense of the pro-
vision that Congress must be given the power to check par-
tisan manipulation of the election process by the States:
“Whenever the State Legislatures had a favorite meas-
ure to carry, they would take care so to mould their reg-
ulations as to favor the candidates they wished to suc-
ceed. Besides, the inequality of the Representation in
the Legislatures of particular States, would produce a
like inequality in their representation in the Natl. Legis-
lature, as it was presumable that the Counties having
the power in the former case would secure it to them-
selves in the latter. What danger could there be in giv-
ing a controuling power to the Natl. Legislature?” 2
Records of the Federal Convention of 1787, pp. 240–241
(M. Farrand ed. 1911).
Although the motion of Pinckney and Rutledge failed, oppo-
sition to the “make or alter” provision of Article I, § 4—and
the defense that it was needed to prevent political gerryman-
3 Article I, § 4, provides as follows:
“The Times, Places and Manner of holding Elections for Senators and
Representatives, shall be prescribed in each State by the Legislature
thereof; but the Congress may at any time by Law make or alter such
Regulations, except as to the Places of chusing Senators.”

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dering—continued to be voiced in the state ratifying de-
bates. A delegate to the Massachusetts convention warned
that state legislatures
“might make an unequal and partial division of the
states into districts for the election of representatives,
or they might even disqualify one third of the electors.
Without these powers in Congress, the people can have
no remedy; but the 4th section provides a remedy, a con-
trolling power in a legislature, composed of senators and
representatives of twelve states, without the influence
of our commotions and factions, who will hear impar-
tially, and preserve and restore to the people their equal
and sacred rights of election.” 2 Debates on the Fed-
eral Constitution 27 (J. Elliot 2d ed. 1876).
The power bestowed on Congress to regulate elections,
and in particular to restrain the practice of political gerry-
mandering, has not lain dormant. In the Apportionment
Act of 1842, 5 Stat. 491, Congress provided that Representa-
tives must be elected from single-member districts “com-
posed of contiguous territory.” See Griffith 12 (noting that
the law was “an attempt to forbid the practice of the gerry-
mander”). 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 practi-
cable an equal number of inhabitants,” 17 Stat. 28, § 2. In
the Apportionment Act of 1901, Congress imposed a com-
pactness requirement. 31 Stat. 733. The requirements of
contiguity, compactness, and equality of population were re-
peated in the 1911 apportionment legislation, 37 Stat. 13,
but were not thereafter continued. Today, only the single-
member-district-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 gerry-

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mandering in congressional districting. See H. R. 5037,
101st Cong., 2d Sess. (1990); H. R. 1711, 101st Cong., 1st Sess.
(1989); H. R. 3468, 98th Cong., 1st Sess. (1983); H. R. 5529,
97th Cong., 2d Sess. (1982); H. R. 2349, 97th Cong., 1st
Sess. (1981).4
Eighteen years ago, we held that the Equal Protection
Clause grants judges the power—and duty—to control politi-
cal gerrymandering, see Davis v. Bandemer, 478 U. S. 109
(1986). It is to consideration of this precedent that we
now turn.
III
As Chief Justice Marshall proclaimed two centuries ago,
“[i]t is emphatically the province and duty of the judicial de-
partment 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 enforce-
able rights. See, e. g., Nixon v. United States, 506 U. S. 224
(1993) (challenge to procedures used in Senate impeachment
proceedings); Pacific States Telephone & Telegraph Co. v. Or-
egon, 223 U. S. 118 (1912) (claims arising under the Guaranty
Clause of Article IV, § 4). Such questions are said to be
“nonjusticiable,” or “political questions.”
In Baker v. Carr, 369 U. S. 186 (1962), we set forth six
independent tests for the existence of a political question:
“[1] a textually demonstrable constitutional commitment
of the issue to a coordinate political department; or [2]
a lack of judicially discoverable and manageable stand-
4 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. See, e. g.,
Iowa Code § 42.4(5) (2003); N. J. Const., Art. II, § 2; Haw. Rev. Stat. § 25–2
(1993); Idaho Code § 72–1506 (1948–1999); Me. Rev. Stat. Ann., Tit. 21–A,
§§ 1206, 1206–A (West Supp. 2003); Mont. Code Ann. § 5–1–115 (2003);
Wash. Rev. Code § 44.05.090 (1994).

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ards for resolving it; or [3] the impossibility of deciding
without an initial policy determination of a kind clearly
for nonjudicial discretion; or [4] the impossibility of a
court’s undertaking independent resolution without ex-
pressing lack of the respect due coordinate branches of
government; or [5] an unusual need for unquestioning
adherence to a political decision already made; or [6] the
potentiality of embarrassment from multifarious pro-
nouncements 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” cre-
ated by Article III, § 1, of the Constitution is not whatever
judges choose to do, see Valley Forge Christian College v.
Americans United for Separation of Church and State, Inc.,
454 U. S. 464, 487 (1982); cf. Grupo Mexicano de Desarrollo,
S. A. v. Alliance Bond Fund, Inc., 527 U. S. 308, 332–333
(1999), or even whatever Congress chooses to assign them,
see Lujan v. Defenders of Wildlife, 504 U. S. 555, 576–577
(1992); Chicago & Southern Air Lines, Inc. v. Waterman
S. S. Corp., 333 U. S. 103, 110–114 (1948). 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 pro-
nounced 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,” 478 U. S., at
123, such cases were justiciable. The clumsy shifting of the
burden of proof for the premise (the Court was “not per-
suaded” that standards do not exist, rather than “persuaded”

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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 be-
lieved that the standard was one thing, see id., at 127 (plural-
ity 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 assur-
ance 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 ques-
tion 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 opin-
ion. 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. As one commentary has put
it, “[t]hroughout its subsequent history, Bandemer has
served almost exclusively as an invitation to litigation with-
out much prospect of redress.” S. Issacharoff, P. Karlan, &
R. Pildes, The Law of Democracy 886 (rev. 2d ed. 2002). The
one case in which relief was provided (and merely prelimi-
nary relief, at that) did not involve the drawing of district
lines; 5 in all of the cases we are aware of involving that most
5 See Republican Party of North Carolina v. Martin, 980 F. 2d 943 (CA4
1992) (upholding denial of Federal Rule of Civil Procedure 12(b)(6) judg-
ment for the defendants); Republican Party of North Carolina v. North
Carolina State Bd. of Elections, 27 F. 3d 563 (CA4 1994) (unpublished

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common form of political gerrymandering, relief was denied.6
Moreover, although the case in which relief was provided
seemingly involved the ne plus ultra of partisan manipula-
tion, see n. 5, supra, we would be at a loss to explain why
the Bandemer line should have been drawn just there, and
should not have embraced several districting plans that were
upheld despite allegations of extreme partisan discrimina-
opinion) (upholding, as modified, a preliminary injunction). Martin dealt
with North Carolina’s system of electing superior court judges statewide,
a system that had resulted in the election of only a single Republican
judge since 1900. 980 F. 2d, at 948. Later developments in the case are
described in n. 8, infra.
6 For cases in which courts rejected prayers for relief under Davis v.
Bandemer, 478 U. S. 109 (1986), see, e. g., Duckworth v. State Administra-
tive Bd. of Election Laws, 332 F. 3d 769 (CA4 2003); Smith v. Boyle, 144
F. 3d 1060 (CA7 1998); La Porte County Republican Central Comm. v.
Board of Comm’rs of County of La Porte, 43 F. 3d 1126 (CA7 1994); Ses-
sion v. Perry, 298 F. Supp. 2d 451 (ED Tex. 2004) (per curiam); Martinez
v. Bush, 234 F. Supp. 2d 1275 (SD Fla. 2002) (three-judge panel); O’Lear
v. Miller, 222 F. Supp. 2d 850 (ED Mich.), summarily aff ’d, 537 U. S. 997
(2002); Marylanders for Fair Representation, Inc. v. Schaefer, 849
F. Supp. 1022 (Md. 1994) (three-judge panel); Terrazas v. Slagle, 821
F. Supp. 1162 (WD Tex. 1993) (three-judge panel); Pope v. Blue, 809
F. Supp. 392 (WDNC) (three-judge panel), summarily aff ’d, 506 U. S. 801
(1992); Illinois Legislative Redistricting Comm’n v. LaPaille, 782
F. Supp. 1272 (ND Ill. 1992); Fund for Accurate and Informed Represen-
tation, Inc. v. Weprin, 796 F. Supp. 662 (NDNY) (three-judge panel), sum-
marily aff ’d, 506 U. S. 1017 (1992); Holloway v. Hechler, 817 F. Supp. 617
(SD W. Va. 1992) (three-judge panel), summarily aff ’d, 507 U. S. 956 (1993);
Hastert v. State Bd. of Elections, 777 F. Supp. 634 (ND Ill. 1991) (three-
judge panel); Anne Arundel County Republican Central Comm. v. State
Administrative Bd. of Election Laws, 781 F. Supp. 394 (Md. 1991) (three-
judge panel), summarily aff ’d, 504 U. S. 938 (1992); Republican Party of
Virginia v. Wilder, 774 F. Supp. 400 (WD Va. 1991) (three-judge panel);
Badham v. Eu, 694 F. Supp. 664, 670 (ND Cal. 1988), summarily aff ’d,
488 U. S. 1024 (1989); In re 2003 Legislative Apportionment of House of
Representatives, 2003 ME 81, 827 A. 2d 810; McClure v. Secretary of Com-
monwealth, 436 Mass. 614, 766 N. E. 2d 847 (2002); Legislative Redistrict-
ing Cases, 331 Md. 574, 629 A. 2d 646 (1993); Kenai Peninsula Borough v.
State, 743 P. 2d 1352 (Alaska 1987).

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tion, bizarrely shaped districts, and disproportionate results.
See, e. g., Session v. Perry, 298 F. Supp. 2d 451 (ED Tex.
2004) (per curiam); O’Lear v. Miller, 222 F. Supp. 2d 850
(ED Mich.), summarily aff ’d, 537 U. S. 997 (2002); Badham v.
Eu, 694 F. Supp. 664, 670 (ND Cal. 1988), summarily aff ’d,
488 U. S. 1024 (1989). To think that this lower court juris-
prudence has brought forth “judicially discernible and man-
ageable 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 politi-
cal gerrymandering claims are nonjusticiable and that Ban-
demer was wrongly decided.
A
We begin our review of possible standards with that pro-
posed by Justice White’s plurality opinion in Bandemer be-
cause, 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 pur-
poses 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,

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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 politi-
cal process” as a whole, which could be achieved even with-
out electing a candidate. Id., at 132–133. It would not be
enough to establish, for example, that Democrats had been
“placed in a district with a supermajority of other Demo-
cratic voters” or that the district “departs from pre-existing
political boundaries.” Id., at 140–141. Rather, in a chal-
lenge 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 candi-
dates, their opportunity to register and vote, and hence their
chance to directly influence the election returns and to se-
cure 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 plu-
rality acknowledged this was “of necessity a difficult in-
quiry.” Id., at 143.
In her Bandemer concurrence, Justice O’Connor pre-
dicted that the plurality’s standard “will over time either
prove unmanageable and arbitrary or else evolve towards
some loose form of proportionality.” Id., at 155 (opinion
concurring in judgment, joined by Burger, C. J., and
Rehnquist, J.). A similar prediction of unmanageability
was expressed in Justice Powell’s opinion, making it the
prognostication of a majority of the Court. See id., at 171
(“The . . . most basic flaw in the plurality’s opinion is its
failure to enunciate any standard that affords guidance to
legislatures and courts”). That prognostication has been
amply fulfilled.
In the lower courts, the legacy of the plurality’s test is
one long record of puzzlement and consternation. See, e. g.,
Session, supra, at 474 (“Throughout this case we have borne

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witness to the powerful, conflicting forces nurtured by Ban-
demer’s holding that the judiciary is to address ‘excessive’
partisan line-drawing, while leaving the issue virtually unen-
forceable”); Vieth I, 188 F. Supp. 2d, at 544 (noting that the
“recondite standard enunciated in Bandemer offers little con-
crete guidance”); Martinez v. Bush, 234 F. Supp. 2d 1275,
1352 (SD Fla. 2002) (three-judge court) (Jordan, J., concur-
ring) (the “lower courts continue to struggle in an attempt
to interpret and apply the ‘discriminatory effect’ prong of
the [Bandemer] standard”); O’Lear, supra, at 855 (describing
Bandemer’s standard for assessing discriminatory effect as
“somewhat murky”). The test has been criticized for its in-
determinacy by a host of academic commentators. See, e. g.,
L. Tribe, American Constitutional Law § 13–9, p. 1083 (2d ed.
1988) (“Neither Justice White’s nor Justice Powell’s approach
to the question of partisan apportionment gives any real
guidance to lower courts forced to adjudicate this issue . . .”);
Still, Hunting of the Gerrymander, 38 UCLA L. Rev. 1019,
1020 (1991) (noting that the plurality opinion has “con-
founded legislators, practitioners, and academics alike”);
Schuck, The Thickest Thicket: Partisan Gerrymandering and
Judicial Regulation of Politics, 87 Colum. L. Rev. 1325, 1365
(1987) (noting that the Bandemer plurality’s standard re-
quires judgments that are “largely subjective and beg ques-
tions that lie at the heart of political competition in a democ-
racy”); Issacharoff, Judging Politics: The Elusive Quest for
Judicial Review of Political Fairness, 71 Texas L. Rev. 1643,
1671 (1993) (“Bandemer begot only confusion”); Grofman, An
Expert Witness Perspective on Continuing and Emerging
Voting Rights Controversies, 21 Stetson L. Rev. 783, 816
(1992) (“[A]s far as I am aware I am one of only two people
who believe that Bandemer makes sense. Moreover, the
other person, Daniel Lowenstein, has a diametrically op-
posed view as to what the plurality opinion means”). Be-
cause this standard was misguided when proposed, has not
been improved in subsequent application, and is not even de-

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fended 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 re-
tains the two-pronged framework of the Bandemer plural-
ity—intent plus effect—but modifies the type of showing suf-
ficient 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 di-
rect evidence or by circumstantial evidence that other neu-
tral and legitimate redistricting criteria were subordinated
to the goal of achieving partisan advantage.” Brief for Ap-
pellants 19 (emphasis added). As compared with the Bande-
mer plurality’s test of mere intent to disadvantage the plain-
tiff ’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 politi-
cal group refers to the relative importance of that goal as
compared with all the other goals that the map seeks to pur-
sue—contiguity of districts, compactness of districts, observ-
ance of the lines of political subdivision, protection of incum-
bents of all parties, cohesion of natural racial and ethnic
neighborhoods, compliance with requirements of the Voting
Rights Act of 1965 regarding racial distribution, etc. Appel-
lants 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

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(1995); Shaw v. Reno, 509 U. S. 630 (1993). 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,” Brief for Appellants 3, appellants propose a test that
is satisfied only when “partisan advantage was the predomi-
nant motivation behind the entire statewide plan,” id., at 32
(emphasis 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 neighbor-
hoods, etc.—statewide? And how is the statewide “out-
weighing” 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 ig-
nore those lines to disadvantage the plaintiffs, is the observ-
ance of political subdivisions the “predominant” goal be-
tween those two? We are sure appellants do not think so.
Even within the narrower compass of challenges to a sin-
gle district, applying a “predominant intent” test to racial
gerrymandering is easier and less disruptive. The Constitu-
tion clearly contemplates districting by political entities, see
Article I, § 4, and unsurprisingly that turns out to be root-
and-branch a matter of politics. See Miller, supra, at 914
(“[R]edistricting in most cases will implicate a political calcu-
lus in which various interests compete for recognition . . .”);
Shaw, supra, at 662 (White, J., dissenting) (“[D]istricting in-
evitably is the expression of interest group politics . . .”);
Gaffney v. Cummings, 412 U. S. 735, 753 (1973) (“The reality
is that districting inevitably has and is intended to have sub-

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stantial political consequences”). 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 sus-
pect motive as to invalidate it is quite different from deter-
mining whether it is so substantially affected by the excess
of an ordinary and lawful motive as to invalidate it. More-
over, the fact that partisan districting is a lawful and com-
mon practice means that there is almost always room for an
election-impeding lawsuit contending that partisan advan-
tage 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 Amend-
ment obligation to refrain from racial discrimination) is clear;
whereas they are not justified in inferring a judicially en-
forceable constitutional obligation (the obligation not to
apply too much partisanship in districting) which is both du-
bious 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 Ban-
demer plurality’s vague test of “denied its chance to effec-
tively influence the political process,” 478 U. S., at 132–133,
with criteria that are seemingly more specific. The requi-
site effect is established when “(1) the plaintiffs show that
the districts systematically ‘pack’ and ‘crack’ the rival par-
ty’s voters,7 and (2) the court’s examination of the ‘totality
of circumstances’ confirms that the map can thwart the plain-
tiffs’ ability to translate a majority of votes into a majority
7 “Packing” refers to the practice of filling a district with a supermajor-
ity 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.

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of seats.” Brief for Appellants 20 (emphasis and footnote
added). This test is loosely based on our cases applying § 2
of the Voting Rights Act of 1965, 42 U. S. C. § 1973, to dis-
crimination by race, see, e. g., Johnson v. De Grandy, 512
U. S. 997 (1994). 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 char-
acteristic, 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 impossi-
ble to assess the effects of partisan gerrymandering, to fash-
ion a standard for evaluating a violation, and finally to craft
a remedy. See Bandemer, supra, at 156 (O’Connor, J., con-
curring in judgment).8
Assuming, however, that the effects of partisan gerryman-
dering can be determined, appellants’ test would invalidate
the districting only when it prevents a majority of the elec-
torate from electing a majority of representatives. Before
considering whether this particular standard is judicially
8 A delicious illustration of this is the one case we have found—alluded
to above—that provided relief under Bandemer. See n. 5, supra. In Re-
publican Party of North Carolina v. Hunt, No. 94–2410, 1996 WL 60439
(CA4, Feb. 12, 1996) (per curiam) (unpublished), judgt. order reported at
77 F. 3d 470, the District Court, after a trial with no less than 311 stipula-
tions by the parties, 132 witness statements, approximately 300 exhibits,
and 2 days of oral argument, concluded that North Carolina’s system of
electing superior court judges on a statewide basis “had resulted in Re-
publican candidates experiencing a consistent and pervasive lack of suc-
cess and exclusion from the electoral process as a whole and that these
effects were likely to continue unabated into the future.” 1996 WL 60439,
at *1. In the elections for superior court judges conducted just five days
after this pronouncement, “every Republican candidate standing for the
office of superior court judge was victorious at the state level,” ibid., a
result which the Fourth Circuit thought (with good reason) “directly at
odds with the recent prediction by the district court,” id., at *2, causing
it to remand the case for reconsideration.

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manageable we question whether it is judicially discernible
in the sense of being relevant to some constitutional viola-
tion. 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 representa-
tion in government to equivalently sized groups. It no-
where says that farmers or urban dwellers, Christian fun-
damentalists or Jews, Republicans or Democrats, must be
accorded political strength proportionate to their numbers.9
Even if the standard were relevant, however, it is not judi-
cially manageable. To begin with, how is a party’s majority
status to be established? Appellants propose using the re-
sults of statewide races as the benchmark of party support.
But as their own complaint describes, in the 2000 Pennsylva-
nia statewide elections some Republicans won and some
Democrats won. See Juris. Statement 137a–138a (describ-
ing how Democratic candidates received more votes for Pres-
ident and auditor general, and Republicans received more
votes for United States Senator, attorney general, and treas-
urer). 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 vot-
ing behavior at all levels is political affiliation. That is as-
suredly not true. As one law review comment has put it:
9 The Constitution also does not share appellants’ alarm at the asserted
tendency of partisan gerrymandering to create more partisan representa-
tives. Assuming that assertion to be true, the Constitution does not an-
swer the question whether it is better for Democratic voters to have their
State’s congressional delegation include 10 wishy-washy Democrats (be-
cause Democratic voters are “effectively” distributed so as to constitute
bare majorities in many districts), or 5 hardcore Democrats (because Dem-
ocratic voters are tightly packed in a few districts). Choosing the former
“dilutes” the vote of the radical Democrat; choosing the latter does the
same to the moderate. Neither Article I, § 2, nor the Equal Protection
Clause takes sides in this dispute.

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“There is no statewide vote in this country for the House
of Representatives or the state legislature. Rather,
there are separate elections between separate candi-
dates 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: Elu-
sive or Illusory, 33 UCLA L. Rev. 1, 59–60 (1985).
See also Schuck, Partisan Gerrymandering: A Political Prob-
lem Without Judicial Solution, in Political Gerrymandering
and the Courts 240, 241 (B. Grofman ed. 1990).
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 sys-
tem, 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 con-
ducted under a judicially drawn district map “free from par-
tisan gerrymandering.” Juris. Statement 137a. 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 Republicans). Id., at 133a, 137a.
Whether by reason of partisan districting or not, party con-
stituents may always wind up “packed” in some districts and
“cracked” throughout others. See R. Dixon, Democratic
Representation 462 (1968) (“All Districting Is ‘Gerrymander-
ing’ ”); Schuck, 87 Colum. L. Rev., at 1359. Consider, for

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example, a legislature that draws district lines with no ob-
jectives 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. See Bandemer,
478 U. S., at 159 (O’Connor, J., concurring in judgment).
Our one-person, one-vote cases, see Reynolds v. Sims, 377
U. S. 533 (1964); Wesberry v. Sanders, 376 U. S. 1 (1964), have
no bearing upon this question, neither in principle nor in
practicality. Not in principle, because to say that each indi-
vidual must have an equal say in the selection of representa-
tives, 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 en-
ables judges to decide whether a violation has occurred (and
to remedy it) essentially on the basis of three readily deter-
mined factors—where the plaintiff lives, how many voters
are in his district, and how many voters are in other dis-
tricts; whereas requiring judges to decide whether a district-
ing 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 parti-

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san ends to the exclusion of “all other neutral factors rele-
vant to the fairness of redistricting.” 478 U. S., at 161 (opin-
ion concurring in part and dissenting in part); see also id.,
at 164–165. Under that inquiry, the courts should consider
numerous factors, though “[n]o one factor should be disposi-
tive.” Id., at 173. The most important would be “the
shapes of voting districts and adherence to established politi-
cal subdivision boundaries.” Ibid. “Other relevant consid-
erations include the nature of the legislative procedures by
which the apportionment law was adopted and legislative
history reflecting contemporaneous legislative goals.” Ibid.
These factors, which “bear directly on the fairness of a redis-
tricting plan,” combined with “evidence concerning popula-
tion disparities and statistics tending to show vote dilution,”
make out a claim of unconstitutional partisan gerrymander-
ing. Ibid.
While Justice Powell rightly criticized the Bandemer plu-
rality for failing to suggest a constitutionally based, judi-
cially 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 noncon-
tiguous 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 legis-
latures 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.

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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 appel-
lants—goes a long way to establishing that there is no consti-
tutionally 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, post, at 327, 328 (dissenting opinion), 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 con-
sider political gerrymandering challenges at the individual-
district level. Much of his dissent is addressed to the incom-
patibility of severe partisan gerrymanders with democratic
principles. We do not disagree with that judgment, any
more than we disagree with the judgment that it would be
unconstitutional for the Senate to employ, in impeachment
proceedings, procedures that are incompatible with its obli-
gation to “try” impeachments. See Nixon v. United States,
506 U. S. 224 (1993). The issue we have discussed is not
whether severe partisan gerrymanders violate the Constitu-
tion, but whether it is for the courts to say when a violation
has occurred, and to design a remedy. On that point, Jus-
tice 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, supra, at 285–288, 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 politi-

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cal judgments.” Post, at 338. 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,” supra, at 286—that is to say, racial
gerrymandering for race’s sake, which would be the equiva-
lent of political gerrymandering for politics’ sake. Justice
Stevens says we “er[r] in assuming that politics is ‘an ordi-
nary and lawful motive’ ” in districting, post, at 324—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 gerry-
mandering rests in part upon his belief that “the same stand-
ards should apply,” post, at 335. But in fact the standards
are quite different. A purpose to discriminate on the basis
of race receives the strictest scrutiny under the Equal Pro-
tection Clause, while a similar purpose to discriminate on
the basis of politics does not. “[N]othing in our case law
compels the conclusion that racial and political gerrymanders
are subject to precisely the same constitutional scrutiny. In
fact, our country’s long and persistent history of racial dis-
crimination in voting—as well as our Fourteenth Amend-
ment jurisprudence, which always has reserved the strictest
scrutiny for discrimination on the basis of race—would seem
to compel the opposite conclusion.” Shaw, 509 U. S., at 650
(citation omitted). That quoted passage was in direct re-
sponse to (and rejection of) the suggestion made by Jus-
tices White and Stevens in dissent that “a racial gerry-
mander of the sort alleged here is functionally equivalent to

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gerrymanders for nonracial purposes, such as political gerry-
manders.” Ibid. See also Bush v. Vera, 517 U. S. 952, 964
(1996) (plurality opinion) (“We have not subjected political
gerrymandering to strict scrutiny”).
Justice Stevens relies on First Amendment cases to
suggest that politically discriminatory gerrymanders are
subject to strict scrutiny under the Equal Protection
Clause. See post, at 324–325. It is elementary that scru-
tiny levels are claim specific. An action that triggers a
heightened level of scrutiny for one claim may receive a very
different level of scrutiny for a different claim because the
underlying rights, and consequently constitutional harms,
are not comparable. To say that suppression of political
speech (a claimed First Amendment violation) triggers strict
scrutiny is not to say that failure to give political groups
equal representation (a claimed equal protection violation)
triggers strict scrutiny. Only an equal protection claim is
before us in the present case—perhaps for the very good
reason that a First Amendment claim, if it were sustained,
would render unlawful all consideration of political affiliation
in districting, just as it renders unlawful all consideration of
political affiliation in hiring for non-policy-level government
jobs. What cases such as Elrod v. Burns, 427 U. S. 347
(1976), require is not merely that Republicans be given a
decent share of the jobs in a Democratic administration, but
that political affiliation be disregarded.
Having failed to make the case for strict scrutiny of polit-
ical gerrymandering, Justice Stevens falls back on the
argument that scrutiny levels simply do not matter for pur-
poses 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

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exist standards which this Court could apply—the proposi-
tion which much of Justice Stevens’s opinion is devoted to
establishing, see, e. g., post, at 321–327, 340–341—does not
mean that those standards are discernible in the Constitu-
tion. This Court may not willy-nilly apply standards—even
manageable standards—having no relation to constitutional
harms. Justice Stevens points out, see post, at 327, n. 15,
that Bandemer said differences between racial and political
groups “may be relevant to the manner in which the case is
adjudicated, but these differences do not justify a refusal to
entertain such a case.” 478 U. S., at 125. As 18 years have
shown, Bandemer was wrong.
B
Justice Souter, like Justice Stevens, would restrict
these plaintiffs, on the allegations before us, to district-
specific political gerrymandering claims. Post, at 346, 353
(dissenting opinion). Unlike Justice Stevens, however,
Justice Souter recognizes that there is no existing work-
able standard for adjudicating such claims. He proposes a
“fresh start,” post, at 345: a newly constructed standard
loosely based in form on our Title VII cases, see McDonnell
Douglas Corp. v. Green, 411 U. S. 792 (1973), 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 manage-
ably 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. Post, at 344.
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 tradi-
tional districting principles; (3) that there were “specific cor-

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relations 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 tra-
ditional districting principles; and (5) that “the defendants
acted intentionally to manipulate the shape of the district in
order to pack or crack his group.” Post, at 347–350. When
those showings have been made, the burden would shift to
the defendants to justify the district “by reference to objec-
tives other than naked partisan advantage.” Post, at 351.
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 remedy-
ing 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 dis-
tricting, or a predominant cause)? At step two, for exam-
ple, Justice Souter would require lower courts to assess
whether mapmakers paid “little or no heed to . . . traditional
districting principles.” Post, at 348. 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 neces-
sary now to say exactly how a district court would balance
a good showing on one of these indices against a poor show-
ing on another, for that sort of detail is best worked out case
by case.” Post, at 348–349. 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 ques-

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tion (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 depri-
vation 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.” 478
U. S., at 133. So did the appellants’ proposed test: “[the]
ability to translate a majority of votes into a majority of
seats.” Brief for Appellants 20. Justice Souter avoids
the difficulties of those formulations by never telling us what
his test is looking for, other than the utterly unhelpful “ex-
tremity of unfairness.” He vaguely describes the harm he
is concerned with as vote dilution, post, at 351, 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 gerry-
mander 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.
Even if (though it is implausible) Justice Souter believes
that the constitutional deprivation consists of merely “vote
dilution,” his test would not even identify that effect.
Despite his claimed reliance on the McDonnell Douglas
framework, Justice Souter would allow the plaintiff no op-
portunity to show that the mapmakers’ compliance with tra-
ditional districting factors is pretextual.10 His reason for
10 Justice Souter would allow a State, in proving its affirmative de-
fense, to demonstrate that the reasons given for the district’s shape “were
more than a mere pretext for an old-fashioned gerrymander.” Post, at
352. But the need to establish that affirmative defense does not arise

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this is never stated, but it certainly cannot be that adherence
to traditional districting factors negates any possibility of
intentional vote dilution. As we have explained above,
packing and cracking, whether intentional or no, are quite
consistent with adherence to compactness and respect for
political subdivision lines. See supra, at 289–290. An even
better example is the traditional criterion of incumbency
protection. Justice Souter has previously acknowledged
it to be a traditional and constitutionally acceptable district-
ing principle. See Vera, 517 U. S., at 1047–1048 (dissenting
opinion). Since that is so, his test would not protect those
who are packed, and often tightly so, to ensure the reelection
of representatives of either party. Indeed, efforts to maxi-
mize partisan representation statewide might well begin
with packing voters of the opposing party into the districts
of existing incumbents of that party. By this means an in-
cumbent is protected, a potential adversary to the districting
mollified, and votes of the opposing party are diluted.
Like us, Justice Souter acknowledges and accepts that
“some intent to gain political advantage is inescapable when-
ever political bodies devise a district plan, and some effect
results from the intent.” Post, at 344. Thus, again like us,
he recognizes that “the issue is one of how much is too
much.” Ibid. And once those premises are conceded, the
only line that can be drawn must be based, as Justice Sou-
ter again candidly admits, upon a substantive “notio[n] of
fairness.” Ibid. 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 inter-
vene, he says, when “partisan competition has reached an
extremity of unfairness.” Ibid. (emphasis added). We do
not think the problem is solved by adding the modifier.
until the plaintiff has established his prima facie case. And that prima
facie case fails when, under step two, the district on its face complies with
traditional districting criteria.

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C
We agree with much of Justice Breyer’s dissenting opin-
ion, which convincingly demonstrates that “political consid-
erations will likely play an important, and proper, role in the
drawing of district boundaries.” Post, at 358. 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 en-
trench a minority in power.” Post, at 360 (emphasis in origi-
nal). 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 “ef-
fective government.” Post, at 356. While one must agree
with Justice Breyer’s incredibly abstract starting point
that our Constitution sought to create a “basically demo-
cratic” form of government, ibid., that is a long and impass-
able 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 jour-
ney. Despite his promise to do so, ibid., he never tells us
what he is testing for, beyond the unhelpful “unjustified en-
trenchment.” Post, at 360. Instead, he “set[s] forth several
sets of circumstances that lay out the indicia of abuse,”
“along a continuum,” post, at 365, proceeding (presumably)
from the most clearly unconstitutional to the possibly uncon-
stitutional. With regard to the first “scenario,” he is willing
to assert that the indicia “would be sufficient to support a
claim.” Post, at 366. 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

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a majority of seats in two successive elections, but also of
the fact that there is no “neutral” explanation for this phe-
nomenon. Ibid. 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 sec-
ond scenario “could also add up to unconstitutional gerry-
mandering,” ibid. (emphasis added); and for those in the
third “a court may conclude that the map crosses the consti-
tutional line,” post, at 367 (emphasis added). 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, see supra, at 285–286,
289–290. 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 cir-
cumstances, “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 ac-
knowledges that “a majority normally can work its political
will,” post, at 362, and well describes the number of actors,
from statewide executive officers, to redistricting commis-
sions, to Congress, to the People in ballot initiatives and ref-
erenda, that stand ready to make that happen. See post,
at 362–363. He gives no instance (and we know none) of
permanent frustration of majority will. But where the ma-
jority has failed to assert itself for some indeterminate pe-
riod (two successive elections, if we are to believe his first
scenario), Justice Breyer simply assumes that “court ac-
tion may prove necessary,” post, at 364. 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

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for availability, the more frequently interest rather than ne-
cessity 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 “demon-
strat[ed] the shortcomings of the other standards that have
been considered to date,” post, at 308 (opinion concurring in
judgment). He acknowledges, moreover, that we “lack . . .
comprehensive and neutral principles for drawing electoral
boundaries,” post, at 306–307; and that there is an “absence
of rules to limit and confine judicial intervention,” post, at
307. From these premises, one might think that Justice
Kennedy would reach the conclusion that political gerry-
mandering claims are nonjusticiable. Instead, however, 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 dis-
position 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 unconstitu-
tionality had not been met. It is logically impossible to af-
firm 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]e-
cause, in the case before us, we have no standard.” Post,
at 313. But it is our job, not the plaintiffs’, to explicate the
standard that makes the facts alleged by the plaintiffs ade-
quate or inadequate to state a claim. We cannot nonsuit
them for our failure to do so.

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Justice Kennedy asserts that to declare nonjusticiability
would be incautious. Post, at 311. Our rush to such a hold-
ing 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. Post, at 310. We think not.
When it has come to determining what areas fall beyond our
Article III authority to adjudicate, this Court’s practice,
from the earliest days of the Republic to the present, has
been more reminiscent of Hannibal than of Hamlet. On July
18, 1793, Secretary of State Thomas Jefferson wrote the
Justices at the direction of President Washington, asking
whether they might answer “questions [that] depend for
their solution on the construction of our treaties, on the laws
of nature and nations, and on the laws of the land,” but that
arise “under circumstances which do not give a cognisance
of them to the tribunals of the country.” 3 Correspondence
and Public Papers of John Jay 486–487 (H. Johnston ed. 1891)
(emphasis in original). The letter specifically invited the
Justices to give less than a categorical yes-or-no answer, of-
fering to present the particular questions “from which [the
Justices] will themselves strike out such as any circum-
stances might, in their opinion, forbid them to pronounce on.”
Id., at 487. On August 8, 1793, the Justices responded in a
categorical and decidedly “impatient” manner, saying that
the giving of advisory opinions—not just advisory opinions
on particular questions but all advisory opinions, presum-
ably even those concerning legislation affecting the Judi-
ciary—was beyond their power. “[T]he lines of separation
drawn by the Constitution between the three departments
of the government” prevented it. Id., at 488. The Court
rejected the more “cautious” course of not “deny[ing] all
hopes of intervention,” post, at 310, but leaving the door open
to the possibility that at least some advisory opinions (on a
theory we could not yet imagine) would not violate the sepa-
ration of powers. In Gilligan v. Morgan, 413 U. S. 1, 7
(1973), a case filed after the Ohio National Guard’s shooting

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of students at Kent State University, the plaintiffs sought
“initial judicial review and continuing surveillance by a fed-
eral court over the training, weaponry, and orders of the
Guard.” The Court held the suit nonjusticiable; the matter
was committed to the political branches because, inter alia,
“it is difficult to conceive of an area of governmental activity
in which the courts have less competence.” Id., at 10. The
Court did not adopt the more “cautious” course of letting the
lower courts try their hand at regulating the military before
we declared it impossible. Most recently, in Nixon v.
United States, the Court, joined by Justice Kennedy, held
that a claim that the Senate had employed certain impermis-
sible procedures in trying an impeachment was a nonjusticia-
ble political question. Our decision was not limited to the
particular procedures under challenge, and did not reserve
the possibility that sometime, somewhere, technology or the
wisdom derived from experience might make a court chal-
lenge to Senate impeachment all right.
The only cases Justice Kennedy cites in defense of his
never-say-never approach are Baker v. Carr and Bandemer.
See post, at 310–311. Bandemer provides no cover. There,
all of the Justices who concluded that political gerrymander-
ing 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, 377 U. S. 533 (1964).) But the judgment
under review in Baker, unlike the one under review here,
did not demand the determination of a standard. The lower

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court in Baker had held the apportionment claim of the plain-
tiffs nonjusticiable, and so it was logically possible to dis-
pose of the appeal by simply disagreeing with the nonjusti-
ciability determination. As we observed earlier, that is not
possible here, where the lower court has held the claim justi-
ciable but unsupported by the facts. We must either enun-
ciate 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 confi-
dence in the courts as much as would a premature decision
to intervene.” Post, at 310. 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—an-
nouncing 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. As was noted by a lower court con-
fronted with a political gerrymandering claim:
“When the Supreme Court resolves Vieth, it may choose
to retreat from its decision that the question is justicia-
ble, or it may offer more guidance on the nature of the
required effect. . . . We have learned firsthand what will
result if the Court chooses to do neither. Throughout
this case we have borne witness to the powerful, con-
flicting forces nurtured by Bandemer’s holding that the
judiciary is to address ‘excessive’ partisan line-drawing,
while leaving the issue virtually unenforceable. Inevi-
tably, as the political party in power uses district lines
to lock in its present advantage, the party out of power
attempts to stretch the protective cover of the Voting
Rights Act, urging dilution of critical standards that
may, if accepted, aid their party in the short-run but

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work to the detriment of persons now protected by the
Act in the long-run. Casting the appearance both that
there is a wrong and that the judiciary stands ready
with a remedy, Bandemer as applied steps on legislative
incentives for self-correction.” Session, 298 F. Supp.
2d, at 474.
But the conclusive refutation of Justice Kennedy’s posi-
tion is the point we first made: it is not an available disposi-
tion. We can affirm because political districting presents a
nonjusticiable question; or we can affirm because we believe
the correct standard which identifies unconstitutional politi-
cal districting has not been met; we cannot affirm because
we do not know what the correct standard is. Reduced to
its essence, Justice Kennedy’s opinion boils down to this:
“As presently advised, I know of no discernible and manage-
able 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 dis-
trict and statewide levels—a vote that may change in some
future case but that holds, for the time being, that this mat-
ter is nonjusticiable.
VI
We conclude that neither Article I, § 2, nor the Equal Pro-
tection 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. See Payne v. Tennessee, 501 U. S. 808, 828
(1991). They are doubly weak in Bandemer because the ma-

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Kennedy, J., concurring in judgment
jority’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 be-
cause 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 rea-
soned, ‘this Court has never felt constrained to follow prece-
dent.’ ” 501 U. S., at 827 (quoting Smith v. Allwright, 321
U. S. 649, 665 (1944)). Eighteen years of essentially point-
less litigation have persuaded us that Bandemer is incapable
of principled application. We would therefore overrule that
case, and decline to adjudicate these political gerrymander-
ing 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 di-
recting 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 pos-
sibility of judicial relief if some limited and precise rationale
were found to correct an established violation of the Consti-
tution in some redistricting cases.
When presented with a claim of injury from partisan ger-
rymandering, courts confront two obstacles. First is the
lack of comprehensive and neutral principles for drawing

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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 pro-
ceeding 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 redis-
tricting context from impermissible ones. Race is an im-
permissible classification. See Shaw v. Reno, 509 U. S. 630
(1993). Politics is quite a different matter. See Gaffney v.
Cummings, 412 U. S. 735, 752 (1973) (“It would be idle, we
think, to contend that any political consideration taken into
account in fashioning a reapportionment plan is sufficient to
invalidate it”).
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 con-
clusion that the classifications, though generally permissible,
were applied in an invidious manner or in a way unrelated
to any legitimate legislative objective.
The object of districting is to establish “fair and effective
representation for all citizens.” Reynolds v. Sims, 377 U. S.
533, 565–568 (1964). At first it might seem that courts could
determine, by the exercise of their own judgment, whether
political classifications are related to this object or instead
burden representational rights. The lack, however, of any
agreed upon model of fair and effective representation makes
this analysis difficult to pursue.
The second obstacle—the absence of rules to confine judi-
cial intervention—is related to the first. Because there are
yet no agreed upon substantive principles of fairness in dis-
tricting, we have no basis on which to define clear, manage-

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able, and politically neutral standards for measuring the par-
ticular burden a given partisan classification imposes on
representational rights. Suitable standards for measuring
this burden, however, are critical to our intervention. Ab-
sent sure guidance, the results from one gerrymandering
case to the next would likely be disparate and inconsistent.
In this case, we have not overcome these obstacles to de-
termining that the challenged districting violated appellants’
rights. The fairness principle appellants propose is that a
majority of voters in the Commonwealth should be able to
elect a majority of the Commonwealth’s congressional dele-
gation. There is no authority for this precept. Even if the
novelty of the proposed principle were accompanied by a con-
vincing rationale for its adoption, there is no obvious way
to draw a satisfactory standard from it for measuring an
alleged burden on representational rights. The plurality
demonstrates the shortcomings of the other standards that
have been considered to date. See ante, at Parts III and
IV (demonstrating that the standards proposed in Davis v.
Bandemer, 478 U. S. 109 (1986), by the parties before us, and
by our dissenting colleagues are either unmanageable or in-
consistent with precedent, or both). I would add two com-
ments to the plurality’s analysis. The first is that the par-
ties have not shown us, and I have not been able to discover,
helpful discussions on the principles of fair districting dis-
cussed in the annals of parliamentary or legislative bodies.
Our attention has not been drawn to statements of princi-
pled, well-accepted rules of fairness that should govern dis-
tricting, or to helpful formulations of the legislator’s duty in
drawing district lines.
Second, even those criteria that might seem promising at
the outset (e. g., contiguity and compactness) are not alto-
gether sound as independent judicial standards for measur-
ing a burden on representational rights. They cannot prom-
ise political neutrality when used as the basis for relief.
Instead, it seems, a decision under these standards would

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unavoidably have significant political effect, whether in-
tended or not. For example, if we were to demand that con-
gressional districts take a particular shape, we could not as-
sure the parties that this criterion, neutral enough on its
face, would not in fact benefit one political party over an-
other. See Gaffney, supra, at 753 (“District lines are rarely
neutral phenomena. They can well determine what district
will be predominantly Democratic or predominantly Republi-
can, or make a close race likely”); see also R. Bork, The
Tempting of America: The Political Seduction of the Law
88–89 (1990) (documenting the author’s service as a special
master responsible for redistricting Connecticut and noting
that his final plan so benefited the Democratic Party, albeit
unintentionally, that the party chairman personally congrat-
ulated him); M. Altman, Modeling the Effect of Mandatory
District Compactness on Partisan Gerrymanders, 17 Pol. Ge-
ography 989, 1000–1006 (1998) (explaining that compactness
standards help Republicans because Democrats are more
likely to live in high density regions).
The challenge in finding a manageable standard for assess-
ing burdens on representational rights has long been recog-
nized. See Lowenstein & Steinberg, The Quest for Legisla-
tive Districting in the Public Interest: Elusive or Illusory?
33 UCLA L. Rev. 1, 74 (1985) (“[W]hat matters to us, and
what we think matters to almost all Americans when district
lines are drawn, is how the fortunes of the parties and
the policies the parties stand for are affected. When such
things are at stake there is no neutrality. There is only po-
litical contest”). The dearth of helpful historical guidance
must, in part, cause this uncertainty.
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 at-

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tempt 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 pre-
mature decision to intervene.
Our willingness to enter the political thicket of the appor-
tionment 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 gerrymander-
ing. The plurality’s conclusion that absent an “easily admin-
istrable standard,” ante, at 290, the appellants’ claim must
be nonjusticiable contrasts starkly with the more patient ap-
proach of Baker v. Carr, 369 U. S. 186 (1962), not to mention
the controlling precedent on the question of justiciability of
Davis v. Bandemer, supra, the case the plurality would over-
rule. See ante, at 305–306.
In Baker the Court made clear that the more abstract
standards that guide analysis of all Fourteenth Amendment
claims sufficed to ensure justiciability of a one-person, one-
vote claim. See 369 U. S., at 226.
“Nor need the appellants, in order to succeed in this ac-
tion, 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 Amend-
ment to determine, if on the particular facts they must,
that a discrimination reflects no policy, but simply arbi-
trary and capricious action.” Ibid.
The Court said this before the more specific standard with
which we are now familiar emerged to measure the bur-
den nonequipopulous districting causes on representational
rights. See Reynolds, 377 U. S., at 565–568 (concluding that

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“[s]ince the achieving of fair and effective representation for
all citizens is concededly the basic aim of legislative appor-
tionment,” a legislature’s reliance on other apportionment
interests is invalid, arbitrary, and capricious action if it leads
to unequal populations among districts). The plurality’s
response that in Baker this Court sat in review only of a
nonjusticiability holding is wide of the mark. See ante,
at 303–304. As the plurality itself instructs: Before a court
can conclude that it “has [any] business entertaining [a]
claim,” it must conclude that some “judicially enforceable
righ[t]” is at issue. Ante, at 277. Whether a manageable
standard made the right at issue in Baker enforceable was
as much a necessary inquiry there as it is here. In light of
Baker and Davis v. Bandemer, which directly address the
question of nonjusticiability in the specific context of district-
ing and of asserted violations of the Fourteenth Amendment,
the plurality’s further survey of cases involving different ap-
proaches to the justiciability of different claims cannot be
thought controlling. See ante, at 302–303.
Even putting Baker to the side—and so assuming that
the existence of a workable standard for measuring a gerry-
mander’s burden on representational rights distinguishes
one-person, one-vote claims from partisan gerrymandering
claims for justiciability purposes—I would still reject the
plurality’s conclusions as to nonjusticiability. Relying on
the distinction between a claim having or not having a work-
able standard of that sort involves a difficult proof: proof of
a categorical negative. That is, the different treatment of
claims otherwise so alike hinges entirely on proof that no
standard could exist. This is a difficult proposition to estab-
lish, for proving a negative is a challenge in any context.
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

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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 appor-
tionment shall be drawn so as most to burden Party X’s
rights to fair and effective representation, though still in ac-
cord 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 classifica-
tions 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).
The plurality says that 18 years, in effect, prove the nega-
tive. Ante, at 306 (“Eighteen years of essentially pointless
litigation have persuaded us”). As Justice Souter is cor-
rect to point out, however, during these past 18 years the
lower courts could do no more than follow Davis v. Ban-
demer, which formulated a single, apparently insuperable
standard. See post, at 344–345 (dissenting opinion). More-
over, by the timeline of the law 18 years is rather a short
period. In addition, the rapid evolution of technologies in
the apportionment field suggests yet unexplored possibili-
ties. Computer assisted districting has become so routine
and sophisticated that legislatures, experts, and courts can
use databases to map electoral districts in a matter of hours,
not months. See, e. g., Larios v. Cox, 305 F. Supp. 2d 1335
(ND Ga. 2004) (per curiam). Technology is both a threat
and a promise. On the one hand, if courts refuse to enter-
tain any claims of partisan gerrymandering, the temptation
to use partisan favoritism in districting in an unconstitu-
tional manner will grow. On the other hand, these new

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technologies may produce new methods of analysis that make
more evident the precise nature of the burdens gerryman-
ders impose on the representational rights of voters and par-
ties. That would facilitate court efforts to identify and rem-
edy the burdens, with judicial intervention limited by the
derived standards.
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.
See Baker, 369 U. S., at 331 (Harlan, J., dissenting) (conclud-
ing that the malapportionment claim “should have been dis-
missed for ‘failure to state a claim upon which relief can be
granted’ ” because “[u]ntil it is first decided to what extent
[the] right [to apportion] is limited by the Federal Constitu-
tion, and whether what [a State] has done or failed to do . . .
runs afoul of any such limitation, we need not reach the is-
sues of ‘justiciability’ or ‘political question’ ”).
Because, in the case before us, we have no standard by
which to measure the burden appellants claim has been im-
posed on their representational rights, appellants cannot es-
tablish that the alleged political classifications burden those
same rights. Failing to show that the alleged classifications
are unrelated to the aims of apportionment, appellants’ evi-
dence at best demonstrates only that the legislature adopted
political classifications. That describes no constitutional
flaw, at least under the governing Fourteenth Amendment
standard. See Gaffney, 412 U. S., at 752. As a conse-
quence, appellants’ complaint alleges no impermissible use of
political classifications and so states no valid claim on which
relief may be granted. It must be dismissed as a result.
See Fed. Rule Civ. Proc. 12(b)(6); see also Davis v. Bande-
mer, 478 U. S., at 134.
The plurality thinks I resolve this case with reference to
no standard, see ante, at 301, but that is wrong. The Four-

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teenth 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 sub-
stantive right and as the basis for relief, I note that the
complaint in this case also alleged a violation of First
Amendment rights. See Amended Complaint ¶ 48; Juris.
Statement 145a. 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 bur-
dening 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) (plurality opinion).
Under general First Amendment principles those burdens
in other contexts are unconstitutional absent a compelling
government interest. See id., at 362. “Representative de-
mocracy in any populous unit of governance is unimaginable
without the ability of citizens to band together in promoting
among the electorate candidates who espouse their political
views.” California Democratic Party v. Jones, 530 U. S.
567, 574 (2000). As these precedents show, First Amend-
ment 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.
The plurality suggests there is no place for the First
Amendment in this area. See ante, at 294. The implication

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is that under the First Amendment any and all consideration
of political interests in an apportionment would be invalid.
Ibid. (“Only an equal protection claim is before us in the
present case—perhaps for the very good reason that a First
Amendment claim, if it were sustained, would render unlaw-
ful all consideration of political affiliation in districting”).
That misrepresents the First Amendment analysis. The in-
quiry is not whether political classifications were used. The
inquiry instead is whether political classifications were used
to burden a group’s representational rights. If a court were
to find that a State did impose burdens and restrictions on
groups or persons by reason of their views, there would
likely be a First Amendment violation, unless the State
shows some compelling interest. Of course, all this depends
first on courts’ having available a manageable standard by
which to measure the effect of the apportionment and so to
conclude that the State did impose a burden or restriction
on the rights of a party’s voters.
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 Pro-
tection Clause. The equal protection analysis puts its em-
phasis 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 im-
poses unlawful burdens. The First Amendment analysis
concentrates on whether the legislation burdens the rep-
resentational rights of the complaining party’s voters for
reasons of ideology, beliefs, or political association. The
analysis allows a pragmatic or functional assessment that ac-
cords some latitude to the States. See Eu v. San Francisco

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County Democratic Central Comm., 489 U. S. 214 (1989);
Anderson v. Celebrezze, 460 U. S. 780 (1983).
Finally, I do not understand the plurality to conclude that
partisan gerrymandering that disfavors one party is permis-
sible. Indeed, the plurality seems to acknowledge it is not.
See ante, at 292 (“We do not disagree with [the] judgment”
that “partisan gerrymanders [are incompatible] with demo-
cratic principles”); ante, at 293 (noting that it is the case, and
that the plurality opinion assumes it to be the case, that “an
excessive injection of politics [in districting] is unlawful”).
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 arbi-
trary 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 deter-
mined. 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 proc-
ess. 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 gerry-
mander 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 demo-
cratic 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 aban-
doned. That should not be thought to serve the interests
of our political order. Nor should it be thought to serve

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Stevens, J., dissenting
our interest in demonstrating to the world how democracy
works. Whether spoken with concern or pride, it is unfortu-
nate that our legislators have reached the point of declaring
that, when it comes to apportionment: “ ‘We are in the busi-
ness of rigging elections.’ ” Hoeffel, Six Incumbents Are a
Week Away from Easy Election, Winston-Salem Journal,
Jan. 27, 1998, p. B1 (quoting a North Carolina state senator).
Still, the Court’s own responsibilities require that we re-
frain from intervention in this instance. The failings of the
many proposed standards for measuring the burden a gerry-
mander imposes on representational rights make our in-
tervention improper. If workable standards do emerge to
measure these burdens, however, courts should be prepared
to order relief. With these observations, I join the judg-
ment of the Court.
Justice Stevens, dissenting.
The central question presented by this case is whether po-
litical 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 con-
trary to precedent and profoundly unwise to foreclose all ju-
dicial 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 agree-
ment set forth in the separate opinions are of far greater
significance.
The concept of equal justice under law requires the State
to govern impartially. See Romer v. Evans, 517 U. S. 620,
623 (1996); Lehr v. Robertson, 463 U. S. 248, 265 (1983); New
York City Transit Authority v. Beazer, 440 U. S. 568, 587

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318 VIETH v. JUBELIRER
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(1979). Today’s plurality opinion would exempt governing
officials from that duty in the context of legislative redistrict-
ing 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 mo-
tivation—when any pretense of neutrality is forsaken un-
abashedly and all traditional districting criteria are sub-
verted for partisan advantage—the governing body cannot
be said to have acted impartially.
Although we reaffirm the central holding of the Court in
Davis v. Bandemer, 478 U. S. 109 (1986), we have not reached
agreement on the standard that should govern partisan ger-
rymandering claims. I would decide this case on a narrow
ground. Plaintiffs-appellants urge us to craft new rules that
in effect would authorize judicial review of statewide elec-
tion results to protect the democratic process from a tran-
sient majority’s abuse of its power to define voting districts.
I agree with the plurality’s refusal to undertake that ambi-
tious project. Ante, at 284–290. I am persuaded, however,
that the District Court failed to apply well-settled proposi-
tions of law when it granted the defendants’ motion to dis-
miss plaintiff-appellant Susan Furey’s gerrymandering claim.
According to the complaint, Furey is a registered Demo-
crat who resides at an address in Montgomery County, Penn-
sylvania, that was located under the 1992 districting plan in
Congressional District 13.1 Under the new plan adopted by
the General Assembly in 2002, Furey’s address now places
her in the “non-compact” District 6.2 Furey alleges that the
new districting plan was created “solely” to effectuate the
interests of Republicans,3 and that the General Assembly re-
lied “exclusively” on a principle of “maximum partisan ad-
vantage” when drawing the plan.4 In my judgment, Furey’s
1 App. to Juris. Statement 129a.
2 Ibid.
3 Id., at 142a.
4 Id., at 143a.

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Stevens, J., dissenting
allegations are plainly sufficient to establish: (1) that she has
standing to challenge the constitutionality of District 6;
(2) that her district-specific claim is not foreclosed by the
Bandemer plurality’s rejection of a statewide claim of politi-
cal gerrymandering; and (3) that she has stated a claim that,
at least with respect to District 6, Pennsylvania’s redistrict-
ing plan violates the equal protection principles enunciated
in our voting rights cases both before and after Bandemer.
The District Court therefore erred when it granted the de-
fendants’ motion to dismiss Furey’s claim.
I
Prior to our seminal decision in Baker v. Carr, 369 U. S.
186 (1962), a majority of this Court had heeded Justice
Frankfurter ’s repeated warnings about the dire conse-
quences of entering the “political thicket” of legislative dis-
tricting. Colegrove v. Green, 328 U. S. 549, 556 (1946). As
a result, even the most egregious gerrymanders were shel-
tered from judicial review.5 It was after Baker that we first
decided that the Constitution prohibits legislators from
drawing district lines that diminish the value of individual
votes in overpopulated districts. In reaching that conclu-
5 In Colegrove, for example, the Illinois Legislature had drawn the
State’s district lines under the 1901 State Apportionment Act and had not
reapportioned in the four ensuing decades, “despite census figures indicat-
ing great changes in the distribution of the population.” 328 U. S., at
569 (Black, J., dissenting). The populations of Illinois’ districts in 1945
consequently ranged from 112,000 in the least populous district to 900,000
in the most. Ibid. Nonetheless, the Court, per Justice Frankfurter, con-
cluded that “due regard for the effective working of our Government re-
vealed this issue to be of a peculiarly political nature and therefore not
meet for judicial determination.” Id., at 552. Fewer than 20 years later,
the Court, confronted with a strikingly similar set of facts—a Tennessee
apportionment plan set by a 1901 statute that had remained virtually un-
changed despite dramatic population growth—held, in obvious tension
with Colegrove, that the complaint stated a justiciable cause of action.
Baker, 369 U. S., at 192, 197–198. The Court distinguished Colegrove as
simply “a refusal to exercise equity’s powers.” 369 U. S., at 235.

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sion, we explained that “legislatures . . . should be bodies
which are collectively responsive to the popular will,” Reyn-
olds v. Sims, 377 U. S. 533, 565 (1964), and we accordingly
described “the basic aim of legislative apportionment” as
“achieving . . . fair and effective representation for all citi-
zens,” id., at 565–566. Consistent with that goal, we also
reviewed claims that the majority had discriminated against
particular groups of voters by drawing multimember dis-
tricts that threatened “to minimize or cancel out the voting
strength of racial or political elements of the voting popula-
tion.” Fortson v. Dorsey, 379 U. S. 433, 439 (1965). Such
districts were “vulnerable” to constitutional challenge “if ra-
cial or political groups ha[d] been fenced out of the political
process and their voting strength invidiously minimized.”
Gaffney v. Cummings, 412 U. S. 735, 754 (1973). See also
Whitcomb v. Chavis, 403 U. S. 124, 143 (1971); Burns v. Rich-
ardson, 384 U. S. 73, 88 (1966).
Our holding in Bandemer, 478 U. S., at 118–127, that parti-
san gerrymandering claims are justiciable followed ineluc-
tably from the central reasoning in Baker, 369 U. S. 186.
What was true in Baker is no less true in this context:
“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 govern-
ment coequal with this Court. Nor do we risk embar-
rassment of our government abroad, or grave disturb-
ance at home if we take issue with [Pennsylvania] 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. Ju-
dicial standards under the Equal Protection Clause are
well developed and familiar, and it has been open to
courts since the enactment of the Fourteenth Amend-
ment to determine, if on the particular facts they must,
that a discrimination reflects no policy, but simply ar-

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bitrary and capricious action.” Id., at 226 (footnote
omitted).
“[T]hat the [gerrymandering] claim is submitted by a politi-
cal group, rather than a racial group, does not distinguish
[the cases] in terms of justiciability.” Bandemer, 478 U. S.,
at 125.
At issue in this case, as the plurality states, ante, at 278,
is Baker’s second test—the presence or absence of judicially
manageable standards. The judicial standards applicable to
gerrymandering claims are deeply rooted in decisions that
long preceded Bandemer and have been refined in later
cases. Among those well-settled principles is the under-
standing that a district’s peculiar shape might be a symptom
of an illicit purpose in the line-drawing process. Most no-
tably, in Gomillion v. Lightfoot, 364 U. S. 339, 340 (1960),
the Court invalidated an Alabama statute that altered the
boundaries of the city of Tuskegee “from a square to an
uncouth twenty-eight-sided figure” for the sole purpose of
preventing African-Americans from voting in municipal
elections. The allegations of bizarre shape and improper
motive, “if proven, would abundantly [have] establish[ed]
that Act 140 was not an ordinary geographic redistricting
measure even within familiar abuses of gerrymandering.”
Id., at 341. Justice Fortas’ concurring opinion in Kirkpat-
rick v. Preisler, 394 U. S. 526, 538 (1969), which referred to
gerrymandering as “the deliberate and arbitrary distortion
of district boundaries and populations for partisan or per-
sonal political purposes,” also identified both shape and pur-
pose as relevant standards. The maps attached as exhibits
in Gomillion, 364 U. S., at 348 (Appendix to opinion of the
Court), and in subsequent voting rights cases demonstrate
that an “uncouth” or bizarre shape can easily identify a dis-
trict designed for a single-minded, nonneutral purpose.
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

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explained that “the merits of a gerrymandering claim must
be determined by reference to the configurations of the dis-
tricts, the observance of political subdivision lines, and other
criteria that have independent relevance to the fairness of
redistricting.” 478 U. S., at 165. Applying this three-part
standard, Justice Powell first reviewed the procedures used
in Indiana’s redistricting process and noted that the party in
power had excluded the opposition from its deliberations and
had placed excessive weight on data concerning party voting
trends. Id., at 175–176. Second, Justice Powell pointed to
the strange shape of districts that conspicuously ignored tra-
ditional districting principles. Id., at 176–177. He noted
the impact of such shapes on residents of the uncouth dis-
tricts,6 and he included in his opinion maps that illustrated
the irregularity of the district shapes, id., at 181, 183. Third
and finally, Justice Powell reviewed other “substantial evi-
dence,” including contemporaneous statements and press ac-
counts, demonstrating that the architects of the districts
“were motivated solely by partisan considerations.” Id.,
at 177.
The Court has made use of all three parts of Justice Pow-
ell’s standard in its recent racial gerrymandering jurispru-
dence. 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.
630, 646–647 (1993) (Shaw I), 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. 900, 913 (1995). See
6 “ ‘[T]he potential for voter disillusion and nonparticipation is great,’ as
voters are forced to focus their political activities in artificial electoral
units. Intelligent voters, regardless of party affiliation, resent this sort
of political manipulation of the electorate for no public purpose.” 478
U. S., at 177 (citation omitted).

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Stevens, J., dissenting
also Easley v. Cromartie, 532 U. S. 234, 241 (2001); Shaw v.
Hunt, 517 U. S. 899, 905 (1996) (Shaw II).7 The Shaw line
of cases has emphasized that “reapportionment is one area
in which appearances do matter,” Shaw I, 509 U. S., at 647,
and has focused both on the shape of the challenged districts
and the purpose behind the line-drawing in assessing the
constitutionality of majority-minority districts under the
Equal Protection Clause. These decisions, like Justice Pow-
ell’s opinion in Bandemer, have also considered the process
by which the districting schemes were enacted,8 looked to
other evidence demonstrating that purely improper consider-
ations motivated the decision,9 and included maps illustrating
outlandish district shapes.10
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
7 The reasoning in these decisions followed not only from Gomillion v.
Lightfoot, 364 U. S. 339 (1960), see Shaw I, 509 U. S., at 644–645 (relying
on Gomillion), but also from Justice Powell’s observation in Davis v. Ban-
demer, 478 U. S. 109, 173, n. 12 (1986), that “[i]n some cases, proof of
grotesque district shapes may, without more, provide convincing proof of
unconstitutional gerrymandering.”
8 In Miller v. Johnson, 515 U. S. 900, 917–919 (1995), the Court reviewed
the procedures followed by the Georgia Legislature in responding to the
Justice Department’s objections to its original plan, and the part that the
operator of its “reapportionment computer” played in designing the dis-
tricts, to support its conclusion “that the legislature subordinated tradi-
tional districting principles to race.” See also Bush v. Vera, 517 U. S.
952, 961–962 (1996) (plurality opinion) (discussing use of computer program
to manipulate district lines).
9 In Shaw II, 517 U. S. 899, 910 (1996), for instance, the Court considered
the fact that certain reports regarding the effects of past discrimination
were not before the legislature and therefore could not have played a role
in the districting process.
10 Hunt v. Cromartie, 526 U. S. 541, 554 (1999); Bush v. Vera, 517 U. S.,
at 986 (plurality opinion); Miller, 515 U. S., at 928; Shaw I, 509 U. S., at 659.

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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, ante, at 286, and that deter-
mining whether race—“a rare and constitutionally suspect
motive”—dominated a districting decision “is quite different
from determining whether [such a decision] is so substan-
tially affected by the excess of an ordinary and lawful motive
as to [be] invali[d],” ibid. 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.” We have squarely re-
jected the notion that a “purpose to discriminate on the basis
of politics,” ante, at 286, 293, is never subject to strict scru-
tiny. On the contrary, “political belief and association con-
stitute the core of those activities protected by the First
Amendment,” Elrod v. Burns, 427 U. S. 347, 356 (1976) (plu-
rality opinion), and discriminatory governmental decisions
that burden fundamental First Amendment interests are
subject to strict scrutiny, id., at 363; cf. Police Dept. of Chi-
cago v. Mosley, 408 U. S. 92, 94–95 (1972). Thus, unless
party affiliation is an appropriate requirement for the posi-
tion 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. See Board of
Comm’rs, Wabaunsee Cty. v. Umbehr, 518 U. S. 668, 674–675
(1996); O’Hare Truck Service, Inc. v. City of Northlake, 518
U. S. 712, 716–717 (1996); Rutan v. Republican Party of Ill.,
497 U. S. 62, 64–65 (1990); Branti v. Finkel, 445 U. S. 507,

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Stevens, J., dissenting
519–520 (1980); Elrod, 427 U. S., at 355–363.11 It follows
that political affiliation is not an appropriate standard for
excluding voters from a congressional district.
The plurality argues that our patronage cases do not sup-
port the proposition that strict scrutiny should be applied in
political gerrymandering cases because “[i]t is elementary
that scrutiny levels are claim specific.” Ante, at 294. It is
also elementary, however, that the level of scrutiny is rele-
vant to the question whether there has been a constitutional
violation, not the question of justiciability.12 The standards
outlined above are discernible and judicially manageable re-
gardless of the number of cases in which they must be ap-
plied or the level of scrutiny at which the analysis occurs.13
Thus, the dicta from Shaw I and Bush v. Vera, 517 U. S. 952
(1996), on which the plurality relies, ante, at 293–294, are
beside the point, because they speak not at all to the subject
of justiciability. And while of course a difference exists be-
11 The plurality opinion seems to assume that the dissenting opinions in
Umbehr, 518 U. S., at 686 (Scalia, J.), and Rutan, 497 U. S., at 92 (Scalia,
J.), correctly state the law—namely, that “when a practice not expressly
prohibited by the text of the Bill of Rights bears the endorsement of a
long tradition of open, widespread, and unchallenged use that dates back
to the beginning of the Republic, we have no proper basis for striking it
down,” id., at 95. Cf. ante, at 274–275 (tracing the history of political
gerrymanders to the beginning of the 18th century). But “[o]ur inquiry
does not begin with the judgment of history”; “[r]ather, inquiry must com-
mence with identification of the constitutional limitations implicated by a
challenged governmental practice.” Elrod, 427 U. S., at 354–355.
12 It goes without saying that a claim that otherwise would trigger strict
scrutiny might nonetheless be nonjusticiable. See, e. g., Allen v. Wright,
468 U. S. 737 (1984); DeFunis v. Odegaard, 416 U. S. 312 (1974) (per
curiam).
13 The plurality explains that it is willing to “accep[t] a modest degree
of unmanageability” where the “constitutional command . . . is clear,” but
not where the “constitutional obligation . . . is both dubious and severely
unmanageable.” Ante, at 286. Not only does this statement cast doubt
on the plurality’s faith in our racial gerrymandering cases, but its reason-
ing is clearly tautological.

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tween the constitutional interests protected by the First and
Fourteenth Amendments, the relevant lesson of the patron-
age cases is that partisanship is not always as benign a con-
sideration as the plurality appears to assume. In any event,
as I understand the plurality’s opinion, it seems to agree that
if the State goes “too far”—if it engages in “political gerry-
mandering for politics’ sake”—it violates the Constitution in
the same way as if it undertakes “racial gerrymandering for
race’s sake.” Ante, at 293. But that sort of constitutional
violation cannot be touched by the courts, the plurality main-
tains, because the judicial obligation to intervene is “dubi-
ous.” Ante, at 286.14
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. See, e. g., Lehr, 463 U. S., at 265. Gerry-
manders necessarily rest on legislators’ predictions that
“members of certain identifiable groups . . . will vote in the
same way.” Mobile v. Bolden, 446 U. S. 55, 87 (1980) (Ste-
vens, J., concurring in judgment). “In the line-drawing
process, racial, religious, ethnic, and economic gerrymanders
are all species of political gerrymanders.” Id., at 88. Thus,
the critical issue in both racial and political gerrymandering
cases is the same: whether a single nonneutral criterion con-
trolled the districting process to such an extent that the Con-
stitution 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
14 The plurality’s reluctance to recognize the justiciability of partisan
gerrymanders seems driven in part by a fear that recognizing such claims
will give rise to a flood of litigation. See ante, at 286. But the list of
cases that it cites in its lengthy footnote 6, ante, at 280, suggests that in
the two decades since Bandemer, there has been an average of just three
or four partisan gerrymandering cases filed every year. That volume is
obviously trivial when compared, for example, to the amount of litigation
that followed our adoption of the “one-person, one-vote” rule. See Reyn-
olds v. Sims, 377 U. S. 533 (1964).

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for distinguishing the justiciability of partisan gerryman-
ders. Those cases confirm and reinforce the holding that
partisan gerrymandering claims are justiciable.15
II
The plurality opinion in Bandemer dealt with a claim that
the Indiana apportionment scheme for state legislative dis-
tricts discriminated against Democratic voters on a state-
wide basis. 478 U. S., at 127. In my judgment, the Bande-
mer Court was correct to entertain that statewide challenge,
because the plaintiffs in that case alleged a group harm that
affected members of their party throughout the State. In
the subsequent line of racial gerrymandering cases, however,
the Court shifted its focus from statewide challenges and
required, as a matter of standing, that plaintiffs stating
race-based equal protection claims actually reside in the dis-
tricts they are challenging. See United States v. Hays, 515
U. S. 737, 745 (1995). Because Hays has altered the stand-
ing rules for gerrymandering claims—and because, in my
view, racial and political gerrymanders are species of the
same constitutional concern—the Hays standing rule re-
quires dismissal of the statewide claim.16 But that does not
15 Writing for the Court in Bandemer, Justice White put it well: “That
the characteristics of the complaining group are not immutable or that the
group has not been subject to the same historical stigma may be relevant
to the manner in which the case is adjudicated, but these differences do
not justify a refusal to entertain such a case.” 478 U. S., at 125.
16 The cases that the plurality cites today, ante, at 280, n. 6, support the
conclusion that it would have been wise to endorse the views expressed
in Justice Powell’s dissent in Bandemer, 478 U. S., at 161, and my concur-
rence in Karcher v. Daggett, 462 U. S. 725, 744 (1983). I remain convinced
that our opinions correctly interpreted the law. If that standard were
applied to the statewide challenge in this case, a trial of the entire case
would be required. For the purpose of deciding this case, even though I
dissented from our decision in Shaw I and remain convinced that it was
incorrectly decided, I would give the Shaw cases stare decisis effect in the
political gerrymandering context. Given the Court’s illogical disposition
of this case, however, in future cases I would feel free to reexamine the

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end the matter. Challenges to specific districts, such as
those considered in the Shaw cases, relate to a different type
of “representational” harm, and those allegations necessarily
must be considered on a district-by-district basis. The com-
plaint in this case alleges injuries of both types—a group
harm to Democratic voters throughout Pennsylvania and a
more individualized representational injury to Furey as a
resident of District 6.
In a challenge to a statewide districting plan, plaintiffs-
appellants complain that they have been injured because of
their membership in a particular, identifiable group. The
plaintiffs-appellees in Bandemer, for example, alleged “that
Democratic voters over the State as a whole, not Democratic
voters in particular districts, ha[d] been subjected to uncon-
stitutional discrimination.” 478 U. S., at 127 (citing com-
plaint). They specifically claimed that they were injured as
members of a group because the number of Democratic rep-
resentatives was not commensurate with the number of
Democratic voters throughout Indiana. Much like the
plaintiffs-appellees in Bandemer, plaintiffs-appellants in this
case allege that the statewide plan will enable Republicans,
who constitute about half of Pennsylvania’s voters, to elect
13 or 14 members of the State’s 19-person congressional dele-
gation.17 Under Hays, however, plaintiffs-appellants lack
standing to challenge the districting plan on a statewide
basis. 515 U. S., at 744–745.18
A challenge to a specific district or districts, on the other
hand, alleges a different type of injury entirely—one that
standing issue. I surely would not suggest that a plaintiff would never
have standing to litigate a statewide claim.
17 App. to Juris. Statement 138a.
18 As the Court explained in Hays, “[v]oters in [gerrymandered] districts
may suffer the special representational harms [that constitutionally sus-
pect] classifications can cause in the voting context. On the other hand,
where a plaintiff does not live in such a district, he or she does not suffer
those special harms . . . .” 515 U. S., at 745.

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Stevens, J., dissenting
our recent racial gerrymandering cases have recognized as
cognizable.19 In Shaw I we held that “a plaintiff challeng-
ing a reapportionment statute under the Equal Protection
Clause may state a claim by alleging that the legislation,
though race neutral on its face, rationally cannot be under-
stood as anything other than an effort to separate voters into
different districts on the basis of race.” 509 U. S., at 649.
Af ter describing the pernicious consequences of race-
conscious districting—even when designed to enhance the
representation of the minority—and after explaining why
dramatically irregular shapes “ ‘have sufficient probative
force to call for an explanation,’ ” id., at 647 (quoting Karcher
v. Daggett, 462 U. S. 725, 755 (1983) (Stevens, J., concur-
ring)), we described the message a misshapen district sends
to elected officials:
“When a district obviously is created solely to effectuate
the perceived common interests of one racial group,
elected officials are more likely to believe that their pri-
mary obligation is to represent only the members of that
group, rather than their constituency as a whole. This
is altogether antithetical to our system of representative
democracy.” Shaw I, 509 U. S., at 648.
Undergirding the Shaw cases is the premise that racial ger-
rymanders effect a constitutional wrong when they disrupt
the representational norms that ordinarily tether elected of-
ficials to their constituencies as a whole.
“[L]egislatures,” we have explained, “should be bodies
which are collectively responsive to the popular will,” Reyn-
olds, 377 U. S., at 565, for “[l]egislators are elected by voters,
19 The plurality in Bandemer, 478 U. S., at 127, itself acknowledged that
“the focus of the equal protection inquiry” in a statewide challenge “is
necessarily somewhat different from that involved in the review of individ-
ual districts.”

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not farms or cities or economic interests,” id., at 562.20 Ger-
rymanders 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 dis-
ruption of the representative process imposes a cognizable
“representational har[m].” Hays, 515 U. S., at 745. Be-
cause 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, see Shaw II,
517 U. S., at 904; otherwise the “plaintiff would be asserting
only a generalized grievance against governmental conduct
of which he or she does not approve,” Hays, 515 U. S., at
745. See also Bush v. Vera, 517 U. S., at 957–958 (plurality
opinion).
Although the complaint in this case includes a statewide
challenge, plaintiff-appellant Furey states a stronger claim
as a resident of the misshapen District 6.21 She complains
not merely about the injury resulting from the probable elec-
tion of a congressional delegation that does not fairly repre-
20 Cf. McConnell v. Federal Election Comm’n, 540 U. S. 93, 153 (2003)
(“Just as troubling to a functioning democracy as classic quid pro quo
corruption is the danger that officeholders will decide issues not on the
merits or the desires of their constituencies, but according to the wishes
of those who have made large financial contributions valued by the
officeholder”).
21 Plaintiffs-appellants Richard and Norma Jean Vieth are registered
Democrats who reside in District 16. App. to Juris. Statement 129a.
The complaint does not claim that they resided in a different district under
the old districting scheme, nor does it anywhere allege, as it does on Fur-
ey’s behalf, that District 16 in particular is irregularly shaped. A glance
at the appended map, infra, reveals that District 16 is not especially un-
usual in its contours. Without more specific allegations regarding Dis-
trict 16, I would limit the analysis to District 6.

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Stevens, J., dissenting
sent the entire State, or about the harm flowing from the
probable election of a Republican to represent District 6.22
She also alleges that the grotesque configuration of that dis-
trict itself imposes a special harm on the members of the
political minority residing in District 6 that directly parallels
the harm recognized in Shaw I. Officials elected by the ma-
jority party in such a district, she claims, “are more likely to
believe that their primary obligation is to represent only the
members of that group, rather than the constituency as a
whole.” 23 This is 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 parti-
san 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.24 The
problem, simply put, is that the will of the cartographers
rather than the will of the people will govern.25 As Judge
22 When her residence was located in District 13, Furey was represented
by a Democrat. App. 261.
23 App. to Juris. Statement 142a.
24 “[A]mple evidence demonstrates that many of today’s congressional
representatives owe their election not to ‘the People of the several states’
but to the mercy of state legislatures.” Note, 117 Harv. L. Rev. 1196,
1202 (2004).
25 In this sense the partisan gerrymander is the American cousin of the
English “rotten borough.” In the English system, Members of Parlia-
ment were elected from geographic units that remained unchanged despite
population changes wrought by the Industrial Revolution. “Because rep-

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332 VIETH v. JUBELIRER
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Ward recently wrote, “extreme partisan gerrymandering
leads to a system in which the representatives choose their
constituents, rather than vice-versa.” Session v. Perry, 298
F. Supp. 2d 451, 516 (ED Tex. 2004) (per curiam) (concurring
in part and dissenting in part).
III
Elected officials in some sense serve two masters: the con-
stituents who elected them and the political sponsors who
support them. Their primary obligations are, of course, to
the public in general, but it is neither realistic nor fair to
expect them wholly to ignore the political consequences of
their decisions. “It would be idle . . . to contend that any
political consideration taken into account in fashioning a re-
apportionment plan is sufficient to invalidate it.” Gaffney,
412 U. S., at 752. Political factors are common and permissi-
ble elements of the art of governing a democratic society.
But while political considerations may properly influence
the decisions of our elected officials, when such decisions dis-
resentation was not based on population, vast inequities developed over
time in the form of the so-called rotten boroughs. Old Sarum, for in-
stance, had no human residents—only a few sheep—yet sent the same
number of representatives to Parliament as Yorkshire, with nearly a mil-
lion inhabitants.” R. Zagarri, The Politics of Size: Representation in the
United States, 1776–1850, p. 37 (1987). As a result of this system, “many
insignificant places returned members, while many important towns did
not,” and “even in large towns the members were often elected by a tiny
fraction of the population.” J. Butler, The Passing of the Great Reform
Bill 176 (1914). Meanwhile, “[t]he Government bribed the patron or mem-
ber or both by means of distinctions and offices or by actual cash,” and
“[t]he patron and member bribed the electors in the same way.” Ibid.
The rotten boroughs clearly would violate our familiar one-person, one-
vote rule, but they were also troubling because the representative of such
a borough owed his primary loyalty to his patron and the government
rather than to his constituents (if he had any). Similarly, in gerryman-
dered districts, instead of local groups defined by neutral criteria selecting
their representatives, it is the architects of the districts who select the
constituencies and, in effect, the representatives.

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advantage members of a minority group—whether the mi-
nority is defined by its members’ race, religion, or politi-
cal affiliation—they must rest on a neutral predicate. See
Hampton v. Mow Sun Wong, 426 U. S. 88, 100 (1976) (“The
federal sovereign, like the States, must govern impartially”);
Bandemer, 478 U. S., at 166 (Powell, J., dissenting). The
Constitution enforces “a commitment to the law’s neutrality
where the rights of persons are at stake.” Romer, 517 U. S.,
at 623. See also Board of Trustees of Univ. of Ala. v. Gar-
rett, 531 U. S. 356, 375 (2001) (Kennedy, J., concurring)
(“States act as neutral entities, ready to take instruction and
to enact laws when their citizens so demand”). Thus, the
Equal Protection Clause implements a duty to govern impar-
tially that requires, at the very least, that every decision by
the sovereign serve some nonpartisan public purpose.26
In evaluating a claim that a governmental decision violates
the Equal Protection Clause, we have long required a show-
ing of discriminatory purpose. See Washington v. Davis,
26 In the realm of federal elections, the requirement of governmental
neutrality is buttressed by this Court’s recognition that the Elections
Clause is not “ ‘a source of power to dictate electoral outcomes, to favor
or disfavor a class of candidates, or to evade important constitutional re-
straints.’ ” Cook v. Gralike, 531 U. S. 510, 523 (2001) (quoting U. S. Term
Limits, Inc. v. Thornton, 514 U. S. 779, 833–834 (1995)). And this duty
to govern impartially extends to executive and legislative officials alike.
Beginning as early as its first session in 1789, Congress has passed a num-
ber of statutes designed to guarantee that Executive Branch employees
neutrally carry out their duties. See Ex parte Curtis, 106 U. S. 371, 372–
373 (1882). Some of those laws avoided the danger that “the government
itself may be made to furnish indirectly the money to defray the expenses
of keeping the political party in power that happens to have for the time
being the control of the public patronage.” Id., at 375. It is “fundamen-
tal” that federal employees “are expected to enforce the law and execute
the programs of the Government without bias or favoritism for or against
any political party or group or the members thereof.” Civil Service
Comm’n v. Letter Carriers, 413 U. S. 548, 564–565 (1973). That expecta-
tion reflects the principle that “the impartial execution of the laws” is a
“great end of Government.” Id., at 565.

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334 VIETH v. JUBELIRER
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426 U. S. 229 (1976).27 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 un-
popular religious or political views, that invidious purpose
surely would invalidate the district. See Gomillion v.
Lightfoot, 364 U. S., at 344–345; cf. Board of Ed. of Kiryas
Joel Village School Dist. v. Grumet, 512 U. S. 687, 699–700
(1994).
Consistent with that principle, our recent racial gerryman-
dering 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. We began by holding in Shaw I that a districting
scheme could be “so irrational on its face that it [could] be
understood only as an effort to segregate voters into sepa-
rate voting districts because of their race.” 509 U. S., at
658. Then, in Miller, we explained that Shaw I’s irrational-
shape test did not treat the bizarreness of a district’s lines
itself as a constitutional violation; rather, the irregularity of
the district’s contours in Shaw I was “persuasive circumstan-
tial evidence that race for its own sake, and not other dis-
tricting principles, was the legislature’s dominant and con-
trolling rationale in drawing its district lines.” 515 U. S., at
27 In Washington v. Davis, we referred to an earlier challenge to a New
York reapportionment statute that had failed because the plaintiffs had
not shown that the statute was “ ‘the product of a state contrivance to
segregate on the basis of race or place of origin.’ ” 426 U. S., at 240 (quot-
ing Wright v. Rockefeller, 376 U. S. 52, 58 (1964)). We emphasized that
the Court in Wright had been unanimous in identifying the issue as
“whether the ‘boundaries . . . were purposefully drawn on racial lines.’ ”
426 U. S., at 240 (quoting Wright, 376 U. S., at 67).

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335 Cite as: 541 U. S. 267 (2004)
Stevens, J., dissenting
913. Under the Shaw cases, then, the use of race as a crite-
rion in redistricting is not per se impermissible, see Shaw I,
509 U. S., at 642; Shaw II, 517 U. S. 899, but when race is
elevated to paramount status—when it is the be-all and end-
all of the redistricting process—the legislature has gone too
far. “Race must not simply have been a motivation . . . but
the predominant factor motivating the legislature’s district-
ing decision.” Easley, 532 U. S., at 241 (internal quotation
marks and citations omitted).
Just as irrational shape can serve as an objective indicator
of an impermissible legislative purpose, other objective fea-
tures of a districting map can save the plan from invalidation.
We have explained that “traditional districting principles,”
which include “compactness, contiguity, and respect for polit-
ical subdivisions,” are “important not because they are con-
stitutionally required . . . but because they are objective fac-
tors that may serve to defeat a claim that a district has been
gerrymandered on racial lines.” Shaw I, 509 U. S., at 647
(citing Gaffney, 412 U. S., at 752, n. 18; Karcher, 462 U. S.,
at 755 (Stevens, J., concurring)). “Where these or other
race-neutral considerations are the basis for redistricting
legislation, and are not subordinated to race, a State can ‘de-
feat a claim that a district has been gerrymandered on racial
lines.’ ” Miller, 515 U. S., at 916 (quoting 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. Mobile,
446 U. S., at 87 (Stevens, J., concurring in judgment). In
seeking the desired result, legislators necessarily make judg-
ments about the probability that the members of identifiable

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336 VIETH v. JUBELIRER
Stevens, J., dissenting
groups—whether economic, religious, ethnic, or racial—will
vote in a certain way. The overriding purpose of those pre-
dictions is political. See Karcher, 462 U. S., at 749–750
(Stevens, J., concurring); Mobile, 446 U. S., at 88 (Stevens,
J., concurring in judgment).28 It follows that the standards
that enable courts to identify and redress a racial gerryman-
der could also perform the same function for other species of
gerrymanders. See Bandemer, 478 U. S., at 125; Cousins v.
City Council of Chicago, 466 F. 2d 830, 853 (CA7 1972) (Ste-
vens, J., dissenting).
The racial gerrymandering cases therefore supply a judi-
cially manageable standard for determining when partisan-
ship, 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 partisan-
ship be a permissible consideration in drawing district lines,
so long as it does not predominate. If, as plaintiff-appellant
Furey has alleged, the predominant motive of the legislators
who designed District 6, and the sole justification for its bi-
zarre shape, was a purpose to discriminate against a politi-
cal minority, that invidious purpose should invalidate the
district.
The plurality reasons that the standards for evaluating ra-
cial gerrymanders are not workable in cases such as this
because partisan considerations, unlike racial ones, are per-
fectly legitimate. Ante, at 285–286. Until today, however,
there has not been the slightest intimation in any opinion
written by any Member of this Court that a naked purpose
28 I have elsewhere explained my view that race as a factor in the dis-
tricting process is no different from any other political consideration.
Creating a majority-minority district is no better and no worse than creat-
ing an Irish-American, or Polish-American, or Italian-American district.
In all events the relevant question is whether the sovereign abrogated its
obligation to govern neutrally. See Karcher, 462 U. S., at 753–754 (Ste-
vens, J., concurring); Mobile, 446 U. S., at 88 (Stevens, J., concurring in
judgment); Cousins v. City Council of Chicago, 466 F. 2d 830, 850–853
(CA7 1972) (Stevens, J., dissenting).

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337 Cite as: 541 U. S. 267 (2004)
Stevens, J., dissenting
to disadvantage a political minority would provide a rational
basis for drawing a district line.29 On the contrary, our opin-
ions referring to political gerrymanders have consistently as-
sumed that they were at least undesirable, and we always
have indicated that political considerations are among those
factors that may not dominate districting decisions. 30
Purely partisan motives are “rational” in a literal sense, but
there must be a limiting principle. “[T]he word ‘rational’—
for me at least—includes elements of legitimacy and neutral-
ity that must always characterize the performance of the
sovereign’s duty to govern impartially.” Cleburne v. Cle-
burne Living Center, Inc., 473 U. S. 432, 452 (1985) (Ste-
vens, J., concurring). 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 govern-
ment decisions must satisfy a standard of legitimacy and
29 The plurality’s long discussion of the history of political gerrymanders
is interesting, ante, at 274–277, but it surely is not intended to suggest
that the vintage of an invidious practice—even “an American political tra-
dition as old as the Republic,” Board of Comm’rs, Wabaunsee Cty. v. Um-
behr, 518 U. S. 668, 688 (1996) (Scalia, J., dissenting)—should insulate it
from constitutional review. Compare, e. g., Bradwell v. State, 16 Wall. 130
(1873), with Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721,
729 (2003). The historical discussion might be relevant if it attempted to
justify political gerrymandering as an acceptable use of governmental
power. In the end, however, the plurality’s defense of its position comes
down to the unconvincing assertion that it lacks the juridical capacity to
administer the standards the Court fashioned in its recent racial gerry-
mandering jurisprudence.
30 Bandemer, 478 U. S. 109 (plurality opinion); Gaffney v. Cummings, 412
U. S. 735, 754 (1973); Whitcomb v. Chavis, 403 U. S. 124, 143 (1971); Burns
v. Richardson, 384 U. S. 73, 88 (1966); Fortson v. Dorsey, 379 U. S. 433, 439
(1965). Consistent with these statements, the District Court in a recent
case correctly described political gerrymandering as “a purely partisan
exercise” and “an abuse of power that, at its core, evinces a fundamental
distrust of voters, serving the self-interest of the political parties at the
expense of the public good.” App. to Juris. Statement in Balderas v.
Texas, O. T. 2001, No. 01–1196, p. 10.

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338 VIETH v. JUBELIRER
Stevens, J., dissenting
neutrality; an acceptable rational basis can be neither purely
personal nor purely partisan. See id., at 452–453.
The Constitution does not, of course, require proportional
representation of racial, ethnic, or political groups. In that
I agree with the plurality. Ante, at 288. We have held,
however, that proportional representation of political groups
is a permissible objective, Gaffney, 412 U. S., at 754, and
some of us have expressed the opinion that a majority’s deci-
sion to enhance the representation of a racial minority is
equally permissible, particularly when the decision is de-
signed to comply with the Voting Rights Act of 1965.31
Thus, the view that the plurality implicitly embraces today—
that a gerrymander contrived for the sole purpose of disad-
vantaging a political minority is less objectionable than one
seeking to benefit a racial minority—is doubly flawed. It
disregards the obvious distinction between an invidious and
a benign purpose, and it mistakenly assumes that race cannot
provide a legitimate basis for making political judgments.32
31 See Shaw II, 517 U. S., at 918 (Stevens, J., dissenting); Bush v. Vera,
517 U. S., at 1033–1034 (Stevens, J., dissenting); Miller, 515 U. S., at 947–
948 (Ginsburg, J., dissenting).
32 Because race so seldom provides a rational basis for a governmental
decision, racial classifications almost always fail to survive “rational basis”
scrutiny. But “[n]ot every decision influenced by race is equally objec-
tionable.” Grutter v. Bollinger, 539 U. S. 306, 327 (2003). When race is
used as the basis for making predictive political judgments, it may be
as reliable (or unreliable) as other group characteristics, such as political
affiliation, economic status, or national origin. The fact that race is an
immutable characteristic does not mean that there is anything immutable
or certain about the political behavior of the members of any racial class.
See Mobile v. Bolden, 446 U. S. 55, 88 (1980) (Stevens, J., concurring
in judgment). Registered Republicans of all races sometimes vote for
Democratic candidates, and vice versa.
The plurality asserts that a person’s politics, unlike her race, is not
readily “discernible.” Ante, at 287. But that assertion is belied by the
evidence that the architects of political gerrymanders seem to have no
difficulty in discerning the voters’ political affiliation. After all, eligibility
to vote in primary elections often requires the citizen to register her party
affiliation, but it never requires her to register her race.

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339 Cite as: 541 U. S. 267 (2004)
Stevens, J., dissenting
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.33 Under my analysis, if no neutral criterion can
be identified to justify the lines drawn, and if the only possi-
ble 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, such as those disclosed by
the record in Badham v. Eu, 694 F. Supp. 664 (ND Cal. 1988),
summarily aff ’d, 488 U. S. 1024 (1989),34 and it would per-
haps 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 end-all in apportioning
representatives.
IV
Plaintiff-appellant Furey plainly has stated a claim that
District 6 constitutes an unconstitutional partisan gerryman-
der. According to the complaint, Pennsylvania’s 2002 redis-
tricting plan splits “Montgomery County alone . . . into six
33 The one-person, one-vote rule obviously constitutes a neutral district-
ing criterion, but our gerrymandering cases have never cited that princi-
ple as one of the traditional criteria “that may serve to defeat a claim that
a district has been gerrymandered on racial lines.” Shaw I, 509 U. S., at
647. Thus, I would require that a district be justified with reference to
both the one-person, one-vote rule and some other neutral criterion. See
Bandemer, 478 U. S., at 162, 168 (Powell, J., concurring in part and dissent-
ing in part).
34 The California districting scheme at issue in Badham featured a large
number of districts with highly irregular shapes, all designed, the
plaintiffs-appellants alleged, to dilute Republican voting strength through-
out the State. See Juris. Statement in Badham v. Eu, O. T. 1987,
No. 87–1818, Exh. D, p. 77a. Three Members of this Court dissented from
the summary affirmance in Badham and would have noted probable juris-
diction. 488 U. S. 1024 (1989).

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340 VIETH v. JUBELIRER
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different congressional districts.” 35 The new District 6
“looms like a dragon descending on Philadelphia from the
west, splitting up towns and communities throughout Mont-
gomery and Berks Counties.” 36 Furey alleges that the dis-
tricting plan was created “solely to effectuate the interests”
of Republicans,37 and that the General Assembly relied “ex-
clusively on a principle of maximum partisan advantage”
when drawing the plan,38 “to the exclusion of all other crite-
ria.” 39 The 2002 plan “is so irregular on its face that it ra-
tionally can be viewed only as an effort . . . to advance the
interests of one political party, without regard for traditional
redistricting principles and without any legitimate or com-
pelling justification.” 40 “The problem,” Furey claims, is
that the legislature “subordinated—indeed ignored—all tra-
ditional redistricting principles and all legitimate bases for
governmental decisionmaking, in order to favor those with
one political viewpoint over another.” 41 The plan “ignores
all other traditional redistricting criteria,” she alleges, “thus
demonstrating that partisanship—and nothing else—was the
rationale behind the plan.” 42 Because this complaint states
a claim under a judicially manageable standard for adjudicat-
ing partisan gerrymandering cases, I would reverse the
judgment of the District Court and remand for further pro-
ceedings consistent with this opinion.
The plurality candidly acknowledges that legislatures can
fashion standards to remedy political gerrymandering that
are perfectly manageable and, indeed, that the legislatures
in Iowa and elsewhere have done so. Ante, at 277, n. 4. If
35 App. to Juris. Statement 135a.
36 Id., at 136a.
37 Id., at 142a.
38 Id., at 143a.
39 Id., at 140a.
40 Id., at 143a.
41 Ibid.
42 Id., at 135a.

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341 Cite as: 541 U. S. 267 (2004)
Stevens, J., dissenting
a violation of the Constitution is found, a court could impose
a remedy patterned after such a statute. Thus, the prob-
lem, in the plurality’s view, is not that there is no judicially
manageable standard to fix an unconstitutional partisan ger-
rymander, but rather that the Judiciary lacks the ability to
determine when a state legislature has violated its duty to
govern impartially.
Quite obviously, however, several standards for identifying
impermissible partisan influence are available to judges who
have the will to enforce them. We could hold that every
district boundary must have a neutral justification; we could
apply Justice Powell’s three-factor approach in Bandemer;
we could apply the predominant motivation standard fash-
ioned by the Court in its racial gerrymandering cases; or we
could endorse either of the approaches advocated today by
Justice Souter and Justice Breyer. What is clear is
that it is not the unavailability of judicially manageable
standards that drives today’s decision. It is, instead, a fail-
ure of judicial will to condemn even the most blatant viola-
tions of a state legislature’s fundamental duty to govern
impartially.
Accordingly, I respectfully dissent.
[Appendix to opinion of Stevens, J., follows this page.]

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343 Cite as: 541 U. S. 267 (2004)
Souter, J., dissenting
Justice Souter, with whom Justice Ginsburg joins,
dissenting.
The Constitution guarantees both formal and substantial
equality among voters. For 40 years, we have recognized
that lines dividing a State into voting districts must pro-
duce divisions with equal populations: one person, one vote.
Reynolds v. Sims, 377 U. S. 533, 568 (1964). Otherwise, a
vote in a less populous district than others carries more
clout.
Creating unequally populous districts is not, however, the
only way to skew political results by setting district lines.
The choice to draw a district line one way, not another, al-
ways carries some consequence for politics, save in a mythi-
cal State with voters of every political identity distributed in
an absolutely gray uniformity. The spectrum of opportunity
runs from cracking a group into impotent fractions, to pack-
ing its members into one district for the sake of marginaliz-
ing them in another. However equal districts may be in
population as a formal matter, the consequence of a vote cast
can be minimized or maximized, Karcher v. Daggett, 462 U. S.
725, 734, n. 6 (1983), and if unfairness is sufficiently demon-
strable, the guarantee of equal protection condemns it as a
denial of substantial equality. Davis v. Bandemer, 478 U. S.
109, 129–134 (1986) (plurality opinion).
I
The notion of fairness assumed to be denied in these cases
has been described as “each political group in a State [hav-
ing] the same chance to elect representatives of its choice as
any other political group,” id., at 124, and as a “right to ‘fair
and effective representation,’ ” id., at 162 (Powell, J., concur-
ring in part and dissenting in part). Cf. Wells v. Rockefel-
ler, 394 U. S. 542, 551 (1969) (Harlan, J., dissenting) (describ-
ing the need for “a structure which will in fact as well as
theory be responsive to the sentiments of the community”).
It is undeniable that political sophisticates understand such

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344 VIETH v. JUBELIRER
Souter, J., dissenting
fairness and how to go about destroying it, see App. to
Juris. Statement 134a, although it cannot possibly be de-
scribed with the hard edge of one person, one vote. The
difficulty has been to translate these notions of fairness into
workable criteria, as distinct from mere opportunities for re-
viewing courts to make episodic judgments that things have
gone too far, the sources of difficulty being in the facts that
some intent to gain political advantage is inescapable when-
ever political bodies devise a district plan, and some effect
results from the intent. Wells, supra, at 554–555 (White,
J., dissenting) (“In reality, of course, districting is itself a
gerrymandering in the sense that it represents a complex
blend of political, economic, regional, and historical consider-
ations”). 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. See
Bush v. Vera, 517 U. S. 952, 1057–1062 (1996) (Souter, J.,
dissenting). 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 work-
able than we were when Davis was decided. Ante, at 281.1
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 admin-
istrability in political gerrymandering cases is the Davis plu-
rality’s specification that any criterion of forbidden gerry-
mandering must require a showing that members of the
plaintiff ’s group had “essentially been shut out of the politi-
cal process,” 478 U. S., at 139. See, e. g., Badham v. Eu, 694
1 And the plurality says the dissenters labor still in vain today, ante, at
292; I join in Justice Breyer’s response, post, at 368.

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345 Cite as: 541 U. S. 267 (2004)
Souter, J., dissenting
F. Supp. 664, 670–671 (ND Cal. 1988) (three-judge court).
That is, in order to avoid a threshold for relief so low that
almost any electoral defeat (let alone failure to achieve pro-
portionate results) would support a gerrymandering claim,
the Davis plurality required a demonstration of such perva-
sive devaluation over such a period of time as to raise real
doubt that a case could ever be made out. Davis suggested
that plaintiffs might need to show even that their efforts to
deliberate, register, and vote had been impeded. 478 U. S.,
at 133. This standard, which it is difficult to imagine a
major party meeting, combined a very demanding burden
with significant vagueness; and if appellants have not been
able to propose a practical test for a Davis violation, the
fault belongs less to them than to our predecessors. As
Judge Higginbotham recently put it, “[i]t is now painfully
clear that Justice Powell’s concern that [Davis] offered a
‘ “constitutional green light” to would-be gerrymanderers’
has been realized.” Session v. Perry, 298 F. Supp. 2d 451,
474 (ED Tex. 2004) (per curiam) (footnote omitted) (quoting
Davis, supra, at 173 (Powell, J., concurring in part and dis-
senting in part)).
II
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. E. g., Issa-
charoff, Gerrymandering and Political Cartels, 116 Harv.
L. Rev. 593, 624 (2002) (The “pattern of incumbent entrench-
ment has gotten worse as the computer technology for more
exquisite gerrymandering has improved”); Karlan, The Fire
Next Time: Reapportionment After the 2000 Census, 50
Stan. L. Rev. 731, 736 (1998) (“Finer-grained census data,
better predictive methods, and more powerful computers
allow for increasingly sophisticated equipopulous gerryman-

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346 VIETH v. JUBELIRER
Souter, J., dissenting
ders”); Pildes, Principled Limitations on Racial and Partisan
Redistricting, 106 Yale L. J. 2505, 2553–2554 (1997) (“Recent
cases now document in microscopic detail the astonishing
precision with which redistricters can carve up individual
precincts and distribute them between districts with confi-
dence concerning the racial and partisan consequences”).
See also Morrill, A Geographer’s Perspective, in Political
Gerrymandering and the Courts 213–214 (B. Grofman ed.
1990) (noting that gerrymandering can produce “high propor-
tions of very safe seats”); Brief for Bernard Grofman et al. as
Amici Curiae 5–8 (decline of competitive seats). Cf. Wells,
394 U. S., at 551 (Harlan, J., dissenting) (“A computer may
grind out district lines which can totally frustrate the popu-
lar will on an overwhelming number of critical issues”).
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 analo-
gous to the summary judgment standard crafted in McDon-
nell 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 in-
stead 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 prob-

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347 Cite as: 541 U. S. 267 (2004)
Souter, J., dissenting
lems of single-member districts; if we could not devise a
workable scheme for dealing with claims about these, we
would have to forget the complications posed by multimem-
ber districts.
III
A
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 iden-
tify 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 de-
fined by politics as such.2
Second, a plaintiff would need to show that the district of
his residence, see United States v. Hays, 515 U. S. 737 (1995)
(requiring residence in a challenged district for standing),
2 The plurality says it would not be easy to define such a group, because
“a person’s politics is rarely as readily discernible—and never as perma-
nently discernible—as a person’s race,” ante, at 287. But anytime politi-
cal gerrymandering has been shown to occur, evidence must at least imply
that the defendants themselves sat down, identified the relevant groups,
and set out to concentrate the vote of one and dilute that of the others.
If a plaintiff has the evidence, a court can figure out what was going on.
In major-party cases I do not see any problem with permitting a plaintiff
to allege that he is a registered Republican, for example, and that the
state legislature set out through gerrymandering to minimize the number
of Republicans elected. If references to registration will not serve, a
plaintiff will need to show the criteria for partisan affiliation employed by
the defendants in the challenged districting process.

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348 VIETH v. JUBELIRER
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paid little or no heed to those traditional districting princi-
ples whose disregard can be shown straightforwardly: conti-
guity, compactness, respect for political subdivisions, and
conformity with geographic features like rivers and moun-
tains. Because such considerations are already relevant to
justifying small deviations from absolute population equality,
Karcher, 462 U. S., at 740, and because compactness in
particular is relevant to demonstrating possible majority-
minority districts under the Voting Rights Act of 1965, John-
son v. De Grandy, 512 U. S. 997, 1008 (1994), 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 meas-
ured quantitatively in terms of dispersion, perimeter, and
population ratios, and the development of standards would
thus be possible. See generally Pildes & Niemi, Expressive
Harms, “Bizarre Districts,” and Voting Rights: Evaluating
Election-District Appearances After Shaw v. Reno, 92 Mich.
L. Rev. 483 (1993); see also Bush v. Vera, 517 U. S., at 1057
(Souter, J., dissenting) (suggesting that such measuring for-
mulas might have been applied to salvage Shaw v. Reno, 509
U. S. 630 (1993)).3 It is not necessary now to say exactly
3 Those measures, as defined by Professors Pildes and Niemi, include
dispersion, the ratio of the area of the district to the area of the smallest
circle that circumscribes the district, 92 Mich. L. Rev., at 554–555; perime-
ter, the ratio of the area of the district to the area of the circle whose
diameter equals the length of the area’s perimeter, id., at 555–556; and
population, the ratio of the district’s population to the population con-
tained by the minimum convex figure that encloses the district (or
“rubber-band” area), id., at 556–557, and n. 206. The population measure
can also be taken using the district’s circumscribing circle in the denomina-
tor. Id., at 557. See also Polsby & Popper, The Third Criterion: Com-
pactness as a Procedural Safeguard Against Partisan Gerrymandering, 9
Yale L. & Pol’y Rev. 301, 339–351 (1991) (discussing quantitative measures
of compactness, and favoring the perimeter measure as superior for anti-
gerrymandering purposes); Schwartzberg, Reapportionment, Gerryman-
ders, and the Notion of “Compactness,” 50 Minn. L. Rev. 443 (1966) (dis-

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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 correla-
tions between the district’s deviations from traditional dis-
tricting principles and the distribution of the population of
his group. For example, one of the districts to which appel-
lants object most strongly in this case is District 6, which
they say “looms like a dragon descending on Philadelphia
from the west, splitting up towns and communities through-
out Montgomery and Berks Counties.” App. to Juris. State-
ment 136a. To make their claim stick, they would need to
point to specific protuberances on the Draconian shape that
reach out to include Democrats, or fissures in it that squirm
away from Republicans. They would need to show that
when towns and communities were split, Democrats tended
to fall on one side and Republicans on the other. Although
some counterexamples would no doubt be present in any
complex plan, the plaintiff ’s showing as a whole would need
to provide reasonable support for, if not compel, an inference
that the district took the shape it did because of the distribu-
tion of the plaintiff ’s group. That would begin, but not com-
plete, 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. Ante, at 286,
n. 7.
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,
cussing proposed legislation that would have applied a variant of the
perimeter measure).

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350 VIETH v. JUBELIRER
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50 (1986) (requiring a similar showing to demonstrate that
a multimember district is “responsible for minority voters’
inability to elect [their preferred] candidates”). This hypo-
thetical 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 pack-
ing or cracking of his group. Drawing the hypothetical dis-
trict would, of course, necessarily involve redrawing at least
one contiguous district,4 and a plaintiff would have to show
that this could be done subject to traditional districting prin-
ciples without packing or cracking his group (or another)
worse than in the district being challenged.
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 Washing-
ton v. Davis, 426 U. S. 229 (1976). 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 estab-
lished, politicians not being politically disinterested or char-
acteristically naive. Davis v. Bandemer, 478 U. S., at 128
(“[W]e think it most likely that whenever a legislature redis-
tricts, those responsible for the legislation will know the
likely political composition of the new districts”). 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 legisla-
tive party were vetoproof).5
4 It would not necessarily involve redrawing other noncontiguous dis-
tricts, and I would not permit a plaintiff to ask for such a remedy unless
he first made out a prima facie case as to multiple districts. See infra,
at 353.
5 Amici JoAnn Erfer et al. suggest that a political party strong enough
to redistrict without the other’s approval is analogous to a firm that exer-
cises monopolistic control over a market, and that the ability to exercise
such unilateral control should therefore trigger “heightened constitutional
scrutiny.” Brief 18–19 (citing Terry v. Adams, 345 U. S. 461 (1953), the
Texas Jaybird primary case). See also Issacharoff, Gerrymandering and

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If the affected group were not a major party, proof of in-
tent could, admittedly, be difficult. It would be possible that
a legislature might not even have had the plaintiff ’s group in
mind, and a plaintiff would naturally have a hard time show-
ing requisite intent behind a plan produced by a bipartisan
commission.
B
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 district-
ing principles. I would then shift the burden to the defend-
ants to justify their decision by reference to objectives other
than naked partisan advantage. They might show by rebut-
tal evidence that districting objectives could not be served
by the plaintiff ’s hypothetical district better than by the dis-
trict as drawn, or they might affirmatively establish legiti-
mate 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. Cf. Bush v. Vera, 517 U. S., at 990 (O’Connor,
J., concurring) (compliance with § 2 of the Voting Rights Act
of 1965 is a compelling state interest). It might plead one
person, one vote, a standard compatible with gerrymander-
ing 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. Gaffney v. Cummings, 412
U. S. 735, 754 (1973); 6 cf. Johnson v. De Grandy, 512 U. S., at
Political Cartels, 116 Harv. L. Rev. 593 (2002); Issacharoff & Pildes, Politics
as Markets: Partisan Lockups of the Democratic Process, 50 Stan. L. Rev.
643 (1998). The analogy to antitrust is an intriguing one that may prove
fruitful, though I do not embrace it at this point out of caution about a
wholesale conceptual transfer from economics to politics.
6 Some commentators have criticized Gaffney itself for failing to account
for the harm of bipartisan political gerrymandering to the political process.
E. g., Issacharoff, Political Cartels, supra, at 613 (“Gaffney illustrates the
problem of the use of a discrimination model unmoored to any positive
account of the electoral process”). Gaffney is settled law, and for today’s

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352 VIETH v. JUBELIRER
Souter, J., dissenting
1024 (totality of the circumstances did not support finding of
vote dilution where “minority groups constitute[d] effective
voting majorities in a number of state Senate districts sub-
stantially proportional to their share in the population”).7
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 pet-
rify 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.
purposes I would take as given its approval of bipartisan gerrymanders,
with their associated goal of incumbent protection. The plurality may be
correct, ante, at 297–298, that the test I propose could catch more objec-
tionable gerrymanders if we rejected incumbent protection as an accept-
able purpose of districting. But I am wary of lumping all measures aimed
at incumbent protection together at this point, and I think we would gain
a better sense of what to do if we waited upon the experience of the
district courts in assessing particular efforts at incumbency protection of-
fered by the States in responding to prima facie cases.
7 It is worth a moment to address the plurality’s charge that any judicial
remedy for political gerrymandering necessarily assumes a right to pro-
portional representation. Ante, at 288 (“Deny it as appellants may (and
do), [their] standard rests upon the principle that groups (or at least
political-action groups) have a right to proportional representation”).
I agree with this Court’s earlier statements that the Constitution guaran-
tees no right to proportional representation. See Davis v. Bandemer, 478
U. S. 109, 130 (1986) (plurality opinion) (citing Whitcomb v. Chavis, 403
U. S. 124 (1971), and White v. Regester, 412 U. S. 755 (1973)). It does not
follow that the Constitution permits every state action intended to achieve
any extreme form of disproportionate representation. “Proportional rep-
resentation” usually refers to a set of procedural mechanisms used to guar-
antee, with more or less precision, that a political party’s seats in the
legislature will be proportionate to its share of the vote. See generally
S. Issacharoff, P. Karlan, & R. Pildes, The Law of Democracy 1089–1172
(rev. 2d ed. 2002) (discussing voting systems other than the single-member
district). The Constitution requires a State to adopt neither those mecha-
nisms nor their goal of giving a party seats proportionate to its vote.

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C
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 sur-
rounding 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.
D
The plurality says that my proposed standard would not
solve the essential problem of unworkability. It says that
“[i]t does not solve [the] problem [of determining when ger-
rymandering has gone too far] to break down the original
unanswerable question . . . into four more discrete but
equally unanswerable questions.” Ante, at 296–297. It is
common sense, however, to break down a large and intracta-
ble issue into discrete fragments as a way to get a handle on
the larger one, and the elements I propose are not only trac-
table in theory, but the very subjects that judges already
deal with in practice. The plurality asks, for example,
“[w]hat . . . a lower court [is] to do when, as will often be
the case, the district adheres to some traditional criteria but
not others?” Ante, at 296. This question already arises in
cases under § 2 of the Voting Rights Act of 1965, and the
district courts have not had the same sort of difficulty an-
swering it as they have in applying the Davis v. Bandemer
plurality. See, e. g., Johnson v. Hamrick, 155 F. Supp. 2d
1355, 1362–1363 (ND Ga. 2001) (noncontiguity of a plaintiff ’s
Gingles districts was not fatal to a § 2 claim against a munici-
pal districting scheme because “the city’s boundaries are
rough and asymmetrical . . . [and] the non-contiguous por-

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354 VIETH v. JUBELIRER
Souter, J., dissenting
tions [of the proposed districts] are separated by unincorpo-
rated areas and are relatively near the districts to which
they are joined”). 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.
The plurality also says that my standard is destined to fail
because I have not given a precise enough account of the
extreme unfairness I would prevent. Ante, at 297–298.
But this objection is more the reliable expression of the plu-
rality’s own discouragement than the description of an Achil-
les heel in my suggestion. The harm from partisan gerry-
mandering is (as I have said, supra, at 343, 349–350) a
species of vote dilution: the point of the gerrymander is to
capture seats by manipulating district lines to diminish the
weight of the other party’s votes in elections. To devise a
judicial remedy for that harm, however, it is not necessary
to adopt a full-blown theory of fairness, furnishing a precise
measure of harm caused by divergence from the ideal in each
case. It is sufficient instead to agree that gerrymandering
is, indeed, unfair, as the plurality does not dispute; to observe
the traditional methods of the gerrymanderer, which the plu-
rality summarizes, ante, at 274–276; and to adopt a test
aimed at detecting and preventing the use of those methods,
which, I think, mine is. If those methods are unnecessary
to effective gerrymandering, as the plurality implies, ante,
at 297–298, it is hard to explain why they have been so popu-
lar down through the ages of American politics. My test
would no doubt leave substantial room for a party in power
to seek advantage through its control of the districting proc-
ess; 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

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355 Cite as: 541 U. S. 267 (2004)
Breyer, J., dissenting
not catch them all. Cf. Scalia, The Rule of Law as a Law of
Rules, 56 U. Chi. L. Rev. 1175, 1178 (1989) (“To achieve what
is, from the standpoint of the substantive policies involved,
the ‘perfect’ answer is nice—but it is just one of a number of
competing values”).
IV
In drafting the complaint for this case, appellants’ counsel
naturally proceeded on the assumption that they had to sat-
isfy the Davis v. Bandemer plurality, or some revision in
light of Shaw, but not the prima facie case I have in mind.
Richard and Norma Jean Vieth make only statewide claims,
for which the single district claim brought by Susan Furey
provides insufficient grounding. As for Furey’s own claim,
her allegations fall short, for example, on the feasibility of
an alternative district superior to her own, as I would re-
quire. But she might well be able to allege what I would
require, if given leave to amend. I would grant her that
leave, and therefore would vacate the judgment of the Dis-
trict Court and remand for further proceedings. From the
Court’s judgment denying her that opportunity, I respect-
fully dissent.
Justice Breyer, dissenting.
The use of purely political considerations in drawing dis-
trict boundaries is not a “necessary evil” that, for lack of
judicially manageable standards, the Constitution inevitably
must tolerate. Rather, pure politics often helps to secure
constitutionally important democratic objectives. But
sometimes it does not. Sometimes purely political “gerry-
mandering” will fail to advance any plausible democratic ob-
jective while simultaneously threatening serious democratic
harm. And sometimes when that is so, courts can identify
an equal protection violation and provide a remedy. Be-
cause the plaintiffs could claim (but have not yet proved)
that such circumstances exist here, I would reverse the Dis-
trict Court’s dismissal of their complaint.

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356 VIETH v. JUBELIRER
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The plurality focuses directly on the most difficult issue
before us. It says, “[n]o test—yea, not even a five-part
test—can possibly be successful unless one knows what he is
testing for.” Ante, at 297 (emphasis in original). That is
true. Thus, I shall describe a set of circumstances in which
the use of purely political districting criteria could conflict
with constitutionally mandated democratic requirements—
circumstances that the courts should “test for.” I shall then
explain why I believe it possible to find applicable judi-
cially manageable standards. And I shall illustrate those
standards.
I
I start with a fundamental principle. “We the People,”
who “ordain[ed] and establish[ed]” the American Constitu-
tion, sought to create and to protect a workable form of gov-
ernment that is in its “ ‘principles, structure, and whole
mass,’ ” basically democratic. G. Wood, The Creation of the
American Republic, 1776–1787, p. 595 (1969) (quoting W.
Murray, Political Sketches, Inscribed to His Excellency John
Adams 5 (1787)). See also, e. g., A. Meiklejohn, Free Speech
and Its Relation to Self-Government 14–15 (1948). In a
modern Nation of close to 300 million people, the workable
democracy that the Constitution foresees must mean more
than a guaranteed opportunity to elect legislators represent-
ing equally populous electoral districts. Reynolds v. Sims,
377 U. S. 533, 568 (1964); Kirkpatrick v. Preisler, 394 U. S.
526, 530–531 (1969); Karcher v. Daggett, 462 U. S. 725, 730
(1983). There must also be a method for transforming the
will of the majority into effective government.
This Court has explained that political parties play a nec-
essary role in that transformation. At a minimum, they
help voters assign responsibility for current circumstances,
thereby enabling those voters, through their votes for indi-
vidual candidates, to express satisfaction or dissatisfaction
with the political status quo. Those voters can either vote
to support that status quo or vote to “throw the rascals out.”

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Breyer, J., dissenting
See generally McConnell v. Federal Election Comm’n, 540
U. S. 93, 188 (2003); California Democratic Party v. Jones,
530 U. S. 567, 574 (2000); Colorado Republican Federal Cam-
paign Comm. v. Federal Election Comm’n, 518 U. S. 604,
615–616 (1996). A party-based political system that satisfies
this minimal condition encourages democratic responsibility.
It facilitates the transformation of the voters’ will into a gov-
ernment that reflects that will.
Why do I refer to these elementary constitutional princi-
ples? Because I believe they can help courts identify at
least one abuse at issue in this case. To understand how
that is so, one should begin by asking why single-member
electoral districts are the norm, why the Constitution does
not insist that the membership of legislatures better reflect
different political views held by different groups of voters.
History, of course, is part of the answer, but it does not tell
the entire story. The answer also lies in the fact that a
single-member-district system helps to ensure certain demo-
cratic 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 decision-
making (and which rascals to throw out), while simultane-
ously providing greater legislative stability. Cf. C. Mer-
shon, The Costs of Coalition: Coalition Theories and Italian
Governments, 90 Am. Pol. Sci. Rev. 534 (1996) (noting that
from 1946 to 1992, under proportional systems “almost no
[Italian] government stayed in office more than a few years,
and many governments collapsed after only a few months”);
Hermens, Representation and Proportional Representation,

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358 VIETH v. JUBELIRER
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in Choosing an Electoral System: Issues and Alternatives
15, 24 (A. Lijphart & B. Grofman eds. 1984) (describing the
“political paralysis which had become the hallmark of the
Fourth Republic” under proportional representation). See
also Duverger, Which is the Best Electoral System? in
Choosing an Electoral System, supra, at 31, 32 (arguing
that proportional systems “preven[t] the citizens from ex-
pressing a clear choice for a governmental team,” and that
nonproportional systems allow voters to “choose govern-
ments with the capacity to make decisions”). This is not
to say that single-member districts are preferable; it is sim-
ply to say that single-member-district systems and more-
directly-representational systems reflect different conclu-
sions 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, nor-
mally understand how “the location and shape of districts”
determine “the political complexion of the area.” Gaffney v.
Cummings, 412 U. S. 735, 753 (1973). 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. See, e. g., Persily, In Defense of Foxes
Guarding Henhouses: The Case for Judicial Acquiescence to
Incumbent-Protecting Gerrymanders, 116 Harv. L. Rev. 649,
678, and nn. 94–95 (2002) (recounting the author’s experience
as a neutral court-appointed boundary drawer, in which the
plan he helped draw moved an uninhabited swamp from
one district to another, thereby inadvertently disrupting en-
vironmental projects that were important to the politician
representing the swamp’s former district).
More important for present purposes, the role of politi-
cal considerations reflects a surprising mathematical fact.
Given a fairly large state population with a fairly large con-

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Breyer, J., dissenting
gressional 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 legisla-
tive delegation, say from 100% Republican to 100% Demo-
crat. See M. Altman, Modeling the Effect of Mandatory
District Compactness on Partisan Gerrymanders, 17 Pol. Ge-
ography 989, 1002 (1998) (suggesting that, where the state
population is large enough, even randomly selected compact
districts will generally elect no politicians from the party
that wins fewer votes statewide). 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, Dem-
ocrats have often been concentrated in cities while Repub-
licans have often been concentrated in suburbs and some-
times rural areas, geographically drawn boundaries have
tended to “pac[k]” the former. See ante, at 290 (plurality
opinion) (citing Davis v. Bandemer, 478 U. S. 109, 159 (1986)
(O’Connor, J., concurring in judgment)); Lowenstein &
Steinberg, The Quest for Legislative Districting in the Pub-
lic Interest: Elusive or Illusory? 33 UCLA L. Rev. 1, 9 (1985)
(explaining that the “ ‘formal’ criteria . . . do not live up to
their advance billing as ‘fair’ or ‘neutral’ ”). Neighborhood
or community-based boundaries, seeking to group Irish, Jew-
ish, 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 advan-
tage when drawing electoral maps. And were it not so, the
iron laws of mathematics would have worked their extraordi-
nary volatility-enhancing will.

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360 VIETH v. JUBELIRER
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This is to say that traditional or historically based bound-
aries are not, and should not be, “politics free.” Rather,
those boundaries represent a series of compromises of princi-
ple—among the virtues of, for example, close representation
of voter views, ease of identifying “government” and “op-
position” parties, and stability in government. They also
represent an uneasy truce, sanctioned by tradition, among
different parties seeking political advantage.
As I have said, reference back to these underlying consid-
erations 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 fundamen-
tal: 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 justifi-
cation in other desirable democratic ends, such as maintain-
ing relatively stable legislatures in which a minority party
retains significant representation.
II
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 re-
mediable, abuse, namely, the unjustified use of political fac-
tors 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 entrench-
ment 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 tempo-
rary) minority entrenchment include sheer happenstance,
the existence of more than two major parties, the unique
constitutional requirements of certain representational bod-

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361 Cite as: 541 U. S. 267 (2004)
Breyer, J., dissenting
ies such as the Senate, or reliance on traditional (geographic,
communities of interest, etc.) districting criteria.
The democratic harm of unjustified entrenchment is obvi-
ous. As this Court has written in respect to popularly
based electoral districts:
“Logically, in a society ostensibly grounded on repre-
sentative government, it would seem reasonable that a
majority of the people of a State could elect a majority
of that State’s legislators. To conclude differently, and
to sanction minority control of state legislative bodies,
would appear to deny majority rights in a way that far
surpasses any possible denial of minority rights that
might otherwise be thought to result. Since legisla-
tures are responsible for enacting laws by which all citi-
zens are to be governed, they should be bodies which
are collectively responsive to the popular will.” Reyn-
olds, 377 U. S., at 565.
Where unjustified entrenchment takes place, voters find it
far more difficult to remove those responsible for a govern-
ment they do not want; and these democratic values are
dishonored.
The need for legislative stability cannot justify entrench-
ment, 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 demo-
cratic norms and lacks countervailing justification. For this

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362 VIETH v. JUBELIRER
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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.
III
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 po-
litical will. Where a State has improperly gerrymandered
legislative or congressional districts to the majority’s disad-
vantage, 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;
ante, at 275–277 (plurality opinion) (discussing the history of
Congress’ “power to check partisan manipulation of the elec-
tion process by the States”).
Moreover, voters in some States, perhaps tiring of the po-
litical boundary-drawing rivalry, have found a procedural so-
lution, confiding the task to a commission that is limited in
the extent to which it may base districts on partisan con-
cerns. According to the National Conference of State Leg-
islatures, 12 States currently give “first and final authority
for [state] legislative redistricting to a group other than the
legislature.” National Conference of State Legislatures,
Redistricting Commissions and Alternatives to the Legisla-
ture Conducting Redistricting (2004), available at http://
www.ncsl.org/programs/ legman/Redistrict/Com&alter.htm
(all Internet materials as visited Mar. 29, 2004, and available
in Clerk of Court’s case file). A number of States use a com-
mission for congressional redistricting: Arizona, Hawaii,
Idaho, Montana, New Jersey, and Washington, with Indiana

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363 Cite as: 541 U. S. 267 (2004)
Breyer, J., dissenting
using a commission if the legislature cannot pass a plan and
Iowa requiring the district-drawing body not to consider
political data. Ibid.; Iowa General Assembly, Legislative
Service Bureau, Legislative Guide to Redistricting (Dec.
2000), available at http://www.legis.state.ia.us/Central/LSB/
Guides/redist.htm. Indeed, where state governments have
been unwilling or unable to act, “an informed, civically mili-
tant electorate,” Baker v. Carr, 369 U. S. 186, 270 (1962)
(Frankfurter, J., dissenting), has occasionally taken matters
into its own hands, through ballot initiatives or referendums.
Arizona voters, for example, passed Proposition 106, which
amended the State’s Constitution and created an independ-
ent redistricting commission to draw legislative and congres-
sional districts. Ariz. Const., Art. 4, pt. 2, § 1 (West 2001).
Such reforms borrow from the systems used by other coun-
tries utilizing single-member districts. See, e. g., Adminis-
tration and Cost of Elections Project, Boundary Delimitation
(hereinafter ACE Project), Representation in the Canadian
Parliament, available at http://www.aceproject.org/main/
english/ bd/ bdy_ca.htm (describing Canada’s independent
boundary commissions, which draft maps based on equality
of population, communities of interest, and geographic fac-
tors); ACE Project, The United Kingdom Redistribution
Process, available at http://www.aceproject.org/main/english/
bd/ bdy_gb.htm (describing the United Kingdom’s independ-
ent boundary commissions, which make recommendations to
Parliament after consultation with the public); G. Gudgin &
P. Taylor, Seats, Votes, and the Spatial Organisation of Elec-
tions 8 (1979) (noting that the United Kingdom’s bound-
ary commissions are “explicitly neutral in a party political
sense”).
But we cannot always count on a severely gerrymandered
legislature itself to find and implement a remedy. See Ban-
demer, 478 U. S., at 126. 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.

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364 VIETH v. JUBELIRER
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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. See generally Handley, A
Guide to 2000 Redistricting Tools and Technology, in The
Real Y2K Problem: Census 2000 Data and Redistricting
Technology (N. Persily ed. 2000); Karlan, The Fire Next
Time: Reapportionment After the 2000 Census, 50 Stan.
L. Rev. 731, 736 (1998); ante, at 345–346 (Souter, J., dissent-
ing). By redrawing districts every 2 years, rather than
every 10 years, a party might preserve its political advan-
tages notwithstanding population shifts in the State. The
combination of increasingly precise map-drawing 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 ac-
tion may prove necessary.
When it is necessary, a court should prove capable of find-
ing an appropriate remedy. Courts have developed district-
ing remedies in other cases. See, e. g., Branch v. Smith, 538
U. S. 254 (2003) (affirming the District Court’s injunction of
use of state court’s redistricting plan and order that its own
plan be used until a state plan could be precleared under the
Voting Rights Act of 1965); Karcher, 462 U. S. 725 (upholding
the District Court’s holding that a congressional reappor-
tionment plan was unconstitutional); Reynolds, 377 U. S., at
586–587 (upholding the District Court’s actions in ordering
into effect a reapportionment of both houses of the state leg-
islature). See also Issacharoff, Judging Politics: The Elu-
sive Quest for Judicial Review of Political Fairness, 71 Texas
L. Rev. 1643, 1688–1690, and nn. 227–233 (1993) (reporting
that, in the wake of the 1980 census, there were 13 court-
ordered plans for congressional redistricting, 5 plans that the
courts rejected and returned to state legislatures for re-
drafting, 7 court-ordered state senate plans, 8 state senate

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plans rejected and sent back to the state legislatures, 6
court-ordered state house plans, and 9 state house plans sent
back for further legislative action—all of which meant that,
leaving aside the preclearance provisions of § 5 of the Voting
Rights Act of 1965, about one-third of all redistricting was
done either directly by the federal courts or under courts’
injunctive authority (citing cases)). Moreover, if the dan-
gers 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 un-
justified 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 considera-
tions to achieve that end from their more ordinary and justi-
fied use. And they should be able to design a remedy for
extreme cases.
IV
I do not claim that the problem of identification and sep-
aration 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 unjus-
tified (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 crite-
ria and cannot be explained other than by efforts to achieve
partisan advantage. Below, I set forth several sets of cir-
cumstances 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 ger-
rymandering to achieve the desired result.
Consider, for example, the following sets of circumstances.
First, suppose that the legislature has proceeded to redraw

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boundaries in what seem to be ordinary ways, but the en-
trenchment harm has become obvious. E. g., (a) the legisla-
ture has not redrawn district boundaries more than once
within the traditional 10-year period; and (b) no radical de-
parture 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 congres-
sional elections if a congressional map is being challenged)
has twice failed to obtain a majority of the relevant legisla-
tive 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 sup-
port a claim of unconstitutional entrenchment.
Second, suppose that plaintiffs could point to more serious
departures from redistricting norms. E. g., (a) the legisla-
ture 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 tradi-
tional criteria; (c) the departure cannot be justified or ex-
plained other than by reference to an effort to obtain
partisan political advantage; and (d) a majority party (as de-
fined above) has once failed to obtain a majority of the rele-
vant 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, see Vieth v. Pennsylvania, 195
F. Supp. 2d 672 (MD Pa. 2002) (per curiam) (finding that
Pennsylvania’s first redistricting plan violated the one-

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person, one-vote mandate), 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 tradi-
tional districting criteria cannot be justified or explained
other than by reference to an effort to obtain partisan politi-
cal advantage. To my mind, such circumstances could also
support a claim, because the presence of midcycle redistrict-
ing, for any reason, raises a fair inference that partisan mach-
inations played a major role in the map-drawing process.
Where such an inference is accompanied by statistical evi-
dence 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 com-
promises 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 demo-
cratic principle is serious; identification is possible; and reme-
dies can be found.
V
The plurality sets forth several criticisms of my approach.
Some of those criticisms are overstated. Compare ante, at
300 (“[O]f course there always is a neutral explanation [of
gerrymandering]—if only the time-honored criterion of in-
cumbent protection”), with Brief for Appellants 13 (pointing
to examples of efforts to gerrymander an incumbent of the
opposition party out of office and elect a new member of the
controlling party); compare ante, at 300 (complaining of “the
difficulties of assessing partisan strength statewide”), with
supra, at 366 (identifying the “majority party” simply by

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368 VIETH v. JUBELIRER
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adding up “the votes actually cast for all candidates who
identify themselves as members of that party in the relevant
set of elections”).
Other criticisms involve differing judgments. Compare
ante, at 299 (complaining about the vagueness of unjustified
political machination, “whatever that means,” and of unjusti-
fied entrenchment), with supra, at 360–361 (detailed discus-
sion of “justified” and Reynolds v. Sims); compare ante, at
301 (finding costs of judicial intervention too high), with
supra, at 364–365 (finding costs warranted to ensure major-
ity rule).
But the plurality makes one criticism that warrants a more
elaborate response. It observes “that the mere fact that
these four dissenters come up with three different stand-
ards—all of them different from the two proposed in Bande-
mer and the one proposed here by appellants—goes a long
way to establishing that there is no constitutionally discern-
ible standard.” Ante, at 292.
Does it? The dissenting opinions recommend sets of
standards that differ in certain respects. Members of a ma-
jority might well seek to reconcile such differences. But
dissenters might instead believe that the more thorough,
specific reasoning that accompanies separate statements will
stimulate further discussion. And that discussion could lead
to change in the law, where, as here, one member of the ma-
jority, disagreeing with the plurality as to justiciability, re-
mains in search of appropriate standards. See ante, at 311–
312 (Kennedy, J., concurring in judgment).
VI
In the case before us, there is a strong likelihood that the
plaintiffs’ complaint could be amended readily to assert cir-
cumstances consistent with those I have set forth as appro-
priate for judicial intervention. For that reason, I would
authorize the plaintiffs to proceed; and I dissent from the
majority’s contrary determination.