BARTLETT, EXECUTIVE DIRECTOR OF NORTH CAROLINA STATE BOARD OF ELECTIONS, et al. v. STRICKLAND et al.

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CASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STATES
AT
OCTOBER TERM, 2008
BARTLETT, EXECUTIVE DIRECTOR OF NORTH
CAROLINA STATE BOARD OF ELECTIONS, et al.
v. STRICKLAND et al.
certiorari to the supreme court of north carolina
No. 07–689. Argued October 14, 2008—Decided March 9, 2009
Despite the North Carolina Constitution’s “Whole County Provision” pro
hibiting the General Assembly from dividing counties when drawing its
own legislative districts, in 1991 the legislature drew House District 18
to include portions of four counties, including Pender County, for the
asserted purpose of satisfying § 2 of the Voting Rights Act of 1965. At
that time, District 18 was a geographically compact majority-minority
district. By the time the district was to be redrawn in 2003, the
African-American voting-age population in District 18 had fallen below
50 percent. Rather than redrawing the district to keep Pender County
whole, the legislators split portions of it and another county. District
18’s African-American voting-age population is now 39.36 percent.
Keeping Pender County whole would have resulted in an African-
American voting-age population of 35.33 percent. The legislators’ ra
tionale was that splitting Pender County gave African-American voters
the potential to join with majority voters to elect the minority group’s
candidate of choice, while leaving Pender County whole would have vio
lated § 2 of the Voting Rights Act.
Pender County and others filed suit, alleging that the redistricting
plan violated the Whole County Provision. The state-official defend
ants answered that dividing Pender County was required by § 2. The
1

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2 BARTLETT v. STRICKLAND
Syllabus
trial court first considered whether the defendants had established the
three threshold requirements for § 2 liability under Thornburg v. Gin
gles, 478 U. S. 30, 51, only the first of which is relevant here: whether
the minority group “is sufficiently large and geographically compact to
constitute a majority in a single-member district.” The court con
cluded that although African-Americans were not a majority of District
18’s voting-age population, the district was a “de facto” majority
minority district because African-Americans could get enough support
from crossover majority voters to elect their preferred candidate. The
court ultimately determined, based on the totality of the circumstances,
that § 2 required that Pender County be split, and it sustained District
18’s lines on that rationale. The State Supreme Court reversed, hold
ing that a minority group must constitute a numerical majority of the
voting-age population in an area before § 2 requires the creation of a
legislative district to prevent dilution of that group’s votes. Because
African-Americans did not have such a numerical majority in District
18, the court ordered the legislature to redraw the district.
Held: The judgment is affirmed.
361 N. C. 491, 649 S. E. 2d 364, affirmed.
Justice Kennedy, joined by The Chief Justice and Justice
Alito, concluded that § 2 does not require state officials to draw
election-district lines to allow a racial minority that would make up less
than 50 percent of the voting-age population in the redrawn district to
join with crossover voters to elect the minority’s candidate of choice.
Pp. 10–25.
1. As amended in 1982, § 2 provides that a violation “is established if,
based on the totality of circumstances, it is shown that the [election]
processes . . . in the State or political subdivision are not equally open
to participation by members of a [protected] class [who] have less oppor
tunity than other members of the electorate to participate in the politi
cal process and to elect representatives of their choice.” 42 U. S. C.
§ 1973(b). Construing the amended § 2 in Gingles, supra, at 50–51, the
Court identified three “necessary preconditions” for a claim that the use
of multimember districts constituted actionable vote dilution. It later
held that those requirements apply equally in § 2 cases involving single
member districts. Growe v. Emison, 507 U. S. 25, 40–41. Only when a
party has established the requirements does a court proceed to analyze
whether a § 2 violation has occurred based on the totality of the circum
stances. See, e. g., Johnson v. De Grandy, 512 U. S. 997, 1013. Pp. 10–12.
2. Only when a geographically compact group of minority voters could
form a majority in a single-member district has the first Gingles re
quirement been met. Pp. 12–25.

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Syllabus
(a) A party asserting § 2 liability must show by a preponderance of
the evidence that the minority population in the potential election dis
trict is greater than 50 percent. The Court has held both that § 2 can
require the creation of a “majority-minority” district, in which a minor
ity group composes a numerical, working majority of the voting-age
population, see, e. g., Voinovich v. Quilter, 507 U. S. 146, 154–155, and
that § 2 does not require the creation of an “influence” district, in which
a minority group can influence the outcome of an election even if its
preferred candidate cannot be elected, see League of United Latin
American Citizens v. Perry, 548 U. S. 399, 445 (LULAC). This case
involves an intermediate, “crossover” district, in which the minority
makes up less than a majority of the voting-age population, but is large
enough to elect the candidate of its choice with help from majority vot
ers who cross over to support the minority’s preferred candidate. Peti
tioners’ theory that such districts satisfy the first Gingles requirement
is contrary to § 2, which requires a showing that minorities “have less
opportunity than other members of the electorate to . . . elect repre
sentatives of their choice,” 42 U. S. C. § 1973(b). Because they form
only 39 percent of District 18’s voting-age population, African-
Americans standing alone have no better or worse opportunity to elect a
candidate than any other group with the same relative voting strength.
Recognizing a § 2 claim where minority voters cannot elect their candi
date of choice based on their own votes and without assistance from
others would grant special protection to their right to form political
coalitions that is not authorized by the section. Nor does the reasoning
of this Court’s cases support petitioners’ claims. In Voinovich, for ex
ample, the Court stated that the first Gingles requirement “would have
to be modified or eliminated” to allow crossover-district claims. 507
U. S., at 158. Indeed, mandatory recognition of such claims would cre
ate serious tension with the third Gingles requirement, that the major
ity votes as a bloc to defeat minority-preferred candidates, see 478 U. S.,
at 50–51, and would call into question the entire Gingles framework.
On the other hand, the plurality finds support for the clear line drawn
by the majority-minority requirement in the need for workable stand
ards and sound judicial and legislative administration. By contrast, if
§ 2 required crossover districts, determining whether a § 2 claim would
lie would require courts to make complex political predictions and tie
them to race-based assumptions. Heightening these concerns is the
fact that because § 2 applies nationwide to every jurisdiction required
to draw election-district lines under state or local law, crossover-district
claims would require courts to make predictive political judgments not
only about familiar, two-party contests in large districts but also about
regional and local elections. Unlike any of the standards proposed to

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4 BARTLETT v. STRICKLAND
Syllabus
allow crossover claims, the majority-minority rule relies on an objective,
numerical test: Do minorities make up more than 50 percent of the
voting-age population in the relevant geographic area? Given § 2’s text,
the Court’s cases interpreting that provision, and the many difficulties
in assessing § 2 claims without the restraint and guidance provided by
the majority-minority rule, all of the Federal Courts of Appeals that
have interpreted the first Gingles factor have required a majority
minority standard. The plurality declines to depart from that uniform
interpretation, which has stood for more than 20 years. Because this
case does not involve allegations of intentional and wrongful conduct,
the Court need not consider whether intentional discrimination affects
the Gingles analysis. Pp. 12–20.
(b) Arguing for a less restrictive interpretation, petitioners point
to § 2’s guarantee that political processes be “equally open to participa
tion” to protect minority voters’ “opportunity . . . to elect representa
tives of their choice,” 42 U. S. C. § 1973(b), and assert that such “oppor
tunit[ies]” occur in crossover districts and require protection. But
petitioners emphasize the word “opportunity” at the expense of the
word “equally.” The statute does not protect any possible opportunity
through which minority voters could work with other constituencies to
elect their candidate of choice. Section 2 does not guarantee minority
voters an electoral advantage. Minority groups in crossover districts
have the same opportunity to elect their candidate as any other political
group with the same relative voting strength. The majority-minority
rule, furthermore, is not at odds with § 2’s totality-of-the-circumstances
test. See, e. g., Growe, supra, at 40. Any doubt as to whether § 2 calls
for this rule is resolved by applying the canon of constitutional avoid
ance to steer clear of serious constitutional concerns under the Equal
Protection Clause. See Clark v. Martinez, 543 U. S. 371, 381–382.
Such concerns would be raised if § 2 were interpreted to require cross
over districts throughout the Nation, thereby “unnecessarily infus[ing]
race into virtually every redistricting.” LULAC, supra, at 446.
Pp. 20–23.
(c) This holding does not consider the permissibility of crossover
districts as a matter of legislative choice or discretion. Section 2 allows
States to choose their own method of complying with the Voting Rights
Act, which may include drawing crossover districts. See Georgia v.
Ashcroft, 539 U. S. 461, 480–482. Moreover, the holding should not be
interpreted to entrench majority-minority districts by statutory com
mand, for that, too, could pose constitutional concerns. See, e. g., Miller
v. Johnson, 515 U. S. 900. Such districts are only required if all three
Gingles factors are met and if § 2 applies based on the totality of
the circumstances. A claim similar to petitioners’ assertion that the

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5 Cite as: 556 U. S. 1 (2009)
Syllabus
majority-minority rule is inconsistent with § 5 was rejected in LULAC,
supra, at 446. Pp. 23–25.
Justice Thomas, joined by Justice Scalia, adhered to his view in
Holder v. Hall, 512 U. S. 874, 891, 893 (opinion concurring in judgment),
that the text of § 2 of the Voting Rights Act of 1965 does not authorize
any vote dilution claim, regardless of the size of the minority population
in a given district. The Thornburg v. Gingles, 478 U. S. 30, framework
for analyzing such claims has no basis in § 2’s text and “has produced . . .
a disastrous misadventure in judicial policymaking,” Holder, supra, at
893. P. 26.
Kennedy, J., announced the judgment of the Court and delivered an
opinion, in which Roberts, C. J., and Alito, J., joined. Thomas, J., filed
an opinion concurring in the judgment, in which Scalia, J., joined, post,
p. 26. Souter, J., filed a dissenting opinion, in which Stevens, Gins
burg, and Breyer, JJ., joined, post, p. 26. Ginsburg, J., post, p. 44, and
Breyer, J., post, p. 44, filed dissenting opinions.
Christopher G. Browning, Jr., argued the cause for peti
tioners. With him on the briefs were Roy Cooper, Attorney
General of North Carolina, Grayson G. Kelley, Tiare B.
Smiley, Alexander McC. Peters, Susan K. Nichols, Walter
Dellinger, Sri Srinivasan, and Irving L. Gornstein.
Carl W. Thurman III argued the cause and filed a brief
for respondents.
Daryl Joseffer argued the cause for the United States as
amicus curiae urging affirmance. On the brief were former
Solicitor General Garre, Acting Assistant Attorney General
Becker, Kannon K. Shanmugam, Diana K. Flynn, and
Angela M. Miller.*
*Briefs of amici curiae urging reversal were filed for the State of Illi
nois et al. by Lisa Madigan, Attorney General of Illinois, Michael A. Sco
dro, Solicitor General, and Jane Elinor Notz, Deputy Solicitor General,
and by the Attorneys General for their respective States as follows: Terry
Goddard of Arizona, Edmund G. Brown, Jr., of California, Richard Blu
menthal of Connecticut, Thurbert E. Baker of Georgia, Stephen N. Six of
Kansas, Jack Conway of Kentucky, Douglas F. Gansler of Maryland, Mar
tha Coakley of Massachusetts, Jim Hood of Mississippi, Jeremiah W. (Jay)
Nixon of Missouri, Anne Milgram of New Jersey, Gary K. King of New
Mexico, and Nancy H. Rogers of Ohio; for the Campaign Legal Center by

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6 BARTLETT v. STRICKLAND
Opinion of Kennedy, J.
Justice Kennedy announced the judgment of the Court
and delivered an opinion, in which The Chief Justice and
Justice Alito join.
This case requires us to interpret § 2 of the Voting Rights
Act of 1965, 79 Stat. 437, as amended, 42 U. S. C. § 1973 (2000
ed.). The question is whether the statute can be invoked to
require state officials to draw election-district lines to allow
a racial minority to join with other voters to elect the minori
ty’s candidate of choice, even where the racial minority is less
than 50 percent of the voting-age population in the district to
be drawn. To use election-law terminology: In a district
that is not a majority-minority district, if a racial minority
could elect its candidate of choice with support from cross
over majority voters, can § 2 require the district to be drawn
to accommodate this potential?
I
The case arises in a somewhat unusual posture. State au
thorities who created a district now invoke the Voting Rights
J. Gerald Hebert, Paul S. Ryan, and Tara Malloy; for the Lawyers’ Com
mittee for Civil Rights Under Law et al. by Matthew M. Hoffman, Ste
phen J. Pollak, William F. Sheehan, John Townsend Rich, Jon M. Green
baum, John Payton, Jacqueline A. Berrien, Debo P. Adegbile, Ryan P.
Haygood, and Brenda Wright; for the League of Women Voters of the
United States by Sam Hirsch and Lloyd Leonard; for the National Associ
ation for the Advancement of Colored People et al. by Anita S. Earls,
Laughlin McDonald, Steven R. Shapiro, Pamela S. Karlan, Jeffrey L.
Fisher, and Thomas C. Goldstein; and for Sanford D. Bishop, Jr., et al. by
Jeh Charles Johnson.
Briefs of amici curiae urging affirmance were filed for the Florida
House of Representatives by Bill McCollum, Attorney General of Florida,
Scott D. Makar, Solicitor General, and Craig D. Feiser, Deputy Solicitor
General; for the American Legislative Exchange Council et al. by E. Mar
shall Braden and Clark H. Bensen; and for the Pacific Legal Foundation
et al. by Sharon L. Browne.
Briefs of amici curiae were filed for the Mexican American Legal De
fense and Educational Fund et al. by Lois D. Thompson and Nina Perales;
and for Nathaniel Persily et al. by Mr. Persily, pro se, and Michael B.
de Leeuw.

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7 Cite as: 556 U. S. 1 (2009)
Opinion of Kennedy, J.
Act as a defense. They argue that § 2 required them to
draw the district in question in a particular way, despite
state laws to the contrary. The state laws are provisions of
the North Carolina Constitution that prohibit the General
Assembly from dividing counties when drawing legislative
districts for the State House and Senate. Art. II, §§ 3, 5.
We will adopt the term used by the state courts and refer to
both sections of the State Constitution as the Whole County
Provision. See Pender County v. Bartlett, 361 N. C. 491,
493, 649 S. E. 2d 364, 366 (2007) (case below).
It is common ground that state election-law requirements
like the Whole County Provision may be superseded by fed
eral law—for instance, the one-person, one-vote principle of
the Equal Protection Clause of the United States Constitu
tion. See Reynolds v. Sims, 377 U. S. 533 (1964). Here the
question is whether § 2 of the Voting Rights Act requires
district lines to be drawn that otherwise would violate the
Whole County Provision. That, in turn, depends on how the
statute is interpreted.
We begin with the election district. The North Carolina
House of Representatives is the larger of the two chambers
in the State’s General Assembly. District 18 of that body
lies in the southeastern part of North Carolina. Starting in
1991, the General Assembly drew District 18 to include por
tions of four counties, including Pender County, in order to
create a district with a majority African-American voting
age population and to satisfy the Voting Rights Act. Fol
lowing the 2000 census, the North Carolina Supreme Court,
to comply with the Whole County Provision, rejected the
General Assembly’s first two statewide redistricting plans.
See Stephenson v. Bartlett, 355 N. C. 354, 375, 562 S. E. 2d
377, 392, stay denied, 535 U. S. 1301 (2002) (Rehnquist, C. J.,
in chambers); Stephenson v. Bartlett, 357 N. C. 301, 314, 582
S. E. 2d 247, 254 (2003).
District 18 in its present form emerged from the General
Assembly’s third redistricting attempt, in 2003. By that

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8 BARTLETT v. STRICKLAND
Opinion of Kennedy, J.
time the African-American voting-age population had fallen
below 50 percent in the district as then drawn, and the Gen
eral Assembly no longer could draw a geographically com
pact majority-minority district. Rather than draw District
18 to keep Pender County whole, however, the General As
sembly drew it by splitting portions of Pender and New Han
over counties. District 18 has an African-American voting
age population of 39.36 percent. App. 139. Had it left
Pender County whole, the General Assembly could have
drawn District 18 with an African-American voting-age pop
ulation of 35.33 percent. Id., at 73. The General Assem
bly’s reason for splitting Pender County was to give
African-American voters the potential to join with majority
voters to elect the minority group’s candidate of its choice.
Ibid. Failure to do so, state officials now submit, would
have diluted the minority group’s voting strength in viola
tion of § 2.
In May 2004, Pender County and the five members of its
board of commissioners filed the instant suit in North Caro
lina state court against the Governor of North Carolina, the
Director of the State Board of Elections, and other state of
ficials. The plaintiffs alleged that the 2003 plan violated the
Whole County Provision by splitting Pender County into two
House districts. Id., at 5–14. The state-official defendants
answered that dividing Pender County was required by § 2.
Id., at 25. As the trial court recognized, the procedural
posture of this case differs from most § 2 cases. Here the
defendants raise § 2 as a defense. As a result, the trial court
stated, they are “in the unusual position” of bearing the bur
den of proving that a § 2 violation would have occurred ab
sent splitting Pender County to draw District 18. App. to
Pet. for Cert. 90a.
The trial court first considered whether the defendant
state officials had established the three threshold require
ments for § 2 liability under Thornburg v. Gingles, 478 U. S.
30, 50–51 (1986)—namely, (1) that the minority group “is suf

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Opinion of Kennedy, J.
ficiently large and geographically compact to constitute a ma
jority in a single-member district,” (2) that the minority
group is “politically cohesive,” and (3) “that the white major
ity votes sufficiently as a bloc to enable it . . . usually to
defeat the minority’s preferred candidate.”
As to the first Gingles requirement, the trial court con
cluded that, although African-Americans were not a majority
of the voting-age population in District 18, the district was
a “de facto” majority-minority district because African-
Americans could get enough support from crossover major
ity voters to elect the African-Americans’ preferred can
didate. The court ruled that African-Americans in District
18 were politically cohesive, thus satisfying the second
requirement. And later, the plaintiffs stipulated that the
third Gingles requirement was met. App. to Pet. for Cert.
102a–103a, 130a. The court then determined, based on
the totality of the circumstances, that § 2 required the
General Assembly to split Pender County. The court sus
tained the lines for District 18 on that rationale. Id., at
116a–118a.
Three of the Pender County Commissioners appealed the
trial court’s ruling that the defendants had established the
first Gingles requirement. The Supreme Court of North
Carolina reversed. It held that a “minority group must con
stitute a numerical majority of the voting population in the
area under consideration before Section 2 . . . requires the
creation of a legislative district to prevent dilution of the
votes of that minority group.” 361 N. C., at 502, 649 S. E.
2d, at 371. On that premise the State Supreme Court deter
mined District 18 was not mandated by § 2 because African-
Americans do not “constitute a numerical majority of citizens
of voting age.” Id., at 507, 649 S. E. 2d, at 374. It ordered
the General Assembly to redraw District 18. Id., at 510, 649
S. E. 2d, at 376.
We granted certiorari, 552 U. S. 1256 (2008), and now
affirm.

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10 BARTLETT v. STRICKLAND
Opinion of Kennedy, J.
II
Passage of the Voting Rights Act of 1965 was an important
step in the struggle to end discriminatory treatment of mi
norities who seek to exercise one of the most fundamental
rights of our citizens: the right to vote. Though the Act as
a whole was the subject of debate and controversy, § 2
prompted little criticism. The likely explanation for its gen
eral acceptance is that, as first enacted, § 2 tracked, in part,
the text of the Fifteenth Amendment. It prohibited prac
tices “imposed or applied by any State or political subdivi
sion to deny or abridge the right of any citizen of the United
States to vote on account of race or color.” 79 Stat. 437;
cf. U. S. Const., Amdt. 15 (“The right of citizens of the United
States to vote shall not be denied or abridged by the United
States or by any State on account of race, color, or previous
condition of servitude”); see also S. Rep. No. 162, 89th Cong.,
1st Sess., pt. 3, pp. 19–20 (1965). In Mobile v. Bolden, 446
U. S. 55, 60–61 (1980), this Court held that § 2, as it then
read, “no more than elaborates upon . . . the Fifteenth
Amendment” and was “intended to have an effect no differ
ent from that of the Fifteenth Amendment itself.”
In 1982, after the Mobile ruling, Congress amended § 2,
giving the statute its current form. The original Act had
employed an intent requirement, prohibiting only those prac
tices “imposed or applied . . . to deny or abridge” the right
to vote. 79 Stat. 437. The amended version of § 2 requires
consideration of effects, as it prohibits practices “imposed or
applied . . . in a manner which results in a denial or abridg
ment” of the right to vote. 96 Stat. 134, 42 U. S. C. § 1973(a)
(2000 ed.). The 1982 amendments also added a subsection,
§ 2(b), providing a test for determining whether a § 2 viola
tion has occurred. The relevant text of the statute now
states:
“(a) No voting qualification or prerequisite to voting
or standard, practice, or procedure shall be imposed or

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Opinion of Kennedy, J.
applied by any State or political subdivision in a manner
which results in a denial or abridgement of the right of
any citizen of the United States to vote on account of
race or color [or membership in a language minority
group], as provided in subsection (b) of this section.
“(b) A violation of subsection (a) of this section is es
tablished if, based on the totality of circumstances, it is
shown that the political processes leading to nomination
or election in the State or political subdivision are not
equally open to participation by members of a class of
citizens protected by subsection (a) of this section in that
its members have less opportunity than other mem
bers of the electorate to participate in the political
process and to elect representatives of their choice.” 42
U. S. C. § 1973.
This Court first construed the amended version of § 2 in
Thornburg v. Gingles, 478 U. S. 30 (1986). In Gingles, the
plaintiffs were African-American residents of North Carolina
who alleged that multimember districts diluted minority
voting strength by submerging black voters into the white
majority, denying them an opportunity to elect a candidate
of their choice. The Court identified three “necessary pre
conditions” for a claim that the use of multimember districts
constituted actionable vote dilution under § 2: (1) The minor
ity group must be “sufficiently large and geographically com
pact to constitute a majority in a single-member district,”
(2) the minority group must be “politically cohesive,” and
(3) the majority must vote “sufficiently as a bloc to enable
it . . . usually to defeat the minority’s preferred candidate.”
Id., at 50–51.
The Court later held that the three Gingles requirements
apply equally in § 2 cases involving single-member districts,
such as a claim alleging vote dilution because a geographi
cally compact minority group has been split between two or
more single-member districts. Growe v. Emison, 507 U. S.
25, 40–41 (1993). In a § 2 case, only when a party has estab

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12 BARTLETT v. STRICKLAND
Opinion of Kennedy, J.
lished the Gingles requirements does a court proceed to ana
lyze whether a violation has occurred based on the totality
of the circumstances. Gingles, supra, at 79; see also John
son v. De Grandy, 512 U. S. 997, 1013 (1994).
III
A
This case turns on whether the first Gingles requirement
can be satisfied when the minority group makes up less than
50 percent of the voting-age population in the potential elec
tion district. The parties agree on all other parts of the
Gingles analysis, so the dispositive question is: What size
minority group is sufficient to satisfy the first Gingles
requirement?
At the outset the answer might not appear difficult to
reach, for the Gingles Court said the minority group must
“demonstrate that it is sufficiently large and geographically
compact to constitute a majority in a single-member dis
trict.” 478 U. S., at 50. This would seem to end the matter,
as it indicates the minority group must demonstrate it can
constitute “a majority.” But in Gingles and again in Growe
the Court reserved what it considered to be a separate ques
tion—whether, “when a plaintiff alleges that a voting prac
tice or procedure impairs a minority’s ability to influence,
rather than alter, election results, a showing of geographical
compactness of a minority group not sufficiently large to con
stitute a majority will suffice.” Growe, supra, at 41, n. 5;
see also Gingles, supra, at 46–47, n. 12. The Court has since
applied the Gingles requirements in § 2 cases but has de
clined to decide the minimum size minority group necessary
to satisfy the first requirement. See Voinovich v. Quilter,
507 U. S. 146, 154 (1993); De Grandy, supra, at 1009; League
of United Latin American Citizens v. Perry, 548 U. S. 399,
443 (2006) (LULAC) (opinion of Kennedy, J.). We must
consider the minimum-size question in this case.

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13 Cite as: 556 U. S. 1 (2009)
Opinion of Kennedy, J.
It is appropriate to review the terminology often used to
describe various features of election districts in relation to
the requirements of the Voting Rights Act. In majority
minority districts, a minority group composes a numerical,
working majority of the voting-age population. Under pres
ent doctrine, § 2 can require the creation of these districts.
See, e. g., Voinovich, supra, at 154 (“Placing black voters in
a district in which they constitute a sizeable and therefore
‘safe’ majority ensures that they are able to elect their candi
date of choice”); but see Holder v. Hall, 512 U. S. 874, 922–
923 (1994) (Thomas, J., concurring in judgment). At the
other end of the spectrum are influence districts, in which a
minority group can influence the outcome of an election even
if its preferred candidate cannot be elected. This Court has
held that § 2 does not require the creation of influence dis
tricts. LULAC, supra, at 445 (opinion of Kennedy, J.).
The present case involves an intermediate type of dis
trict—a so-called crossover district. Like an influence dis
trict, a crossover district is one in which minority voters
make up less than a majority of the voting-age population.
But in a crossover district, the minority population, at least
potentially, is large enough to elect the candidate of its choice
with help from voters who are members of the majority and
who cross over to support the minority’s preferred candidate.
361 N. C., at 501–502, 649 S. E. 2d, at 371 (case below). This
Court has referred sometimes to crossover districts as “co
alitional” districts, in recognition of the necessary coalition
between minority and crossover majority voters. See Geor
gia v. Ashcroft, 539 U. S. 461, 483 (2003); see also Pildes, Is
Voting Rights Law Now at War With Itself? Social Science
and Voting Rights in the 2000s, 80 N. C. L. Rev. 1517, 1539
(2002) (hereinafter Pildes). But that term risks confusion
with coalition-district claims in which two minority groups
form a coalition to elect the candidate of the coalition’s
choice. See, e. g., Nixon v. Kent County, 76 F. 3d 1381, 1393
(CA6 1996) (en banc). We do not address that type of coali

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14 BARTLETT v. STRICKLAND
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tion district here. The petitioners in the present case (the
state officials who were the defendants in the trial court)
argue that § 2 requires a crossover district, in which minority
voters might be able to persuade some members of the ma
jority to cross over and join with them.
Petitioners argue that although crossover districts do not
include a numerical majority of minority voters, they still
satisfy the first Gingles requirement because they are “effec
tive minority districts.” Under petitioners’ theory keeping
Pender County whole would have violated § 2 by cracking
the potential crossover district that they drew as District 18.
See Gingles, supra, at 46, n. 11 (vote dilution “may be caused
by the dispersal of blacks into districts in which they consti
tute an ineffective minority of voters”). So, petitioners con
tend, § 2 required them to override state law and split
Pender County, drawing District 18 with an African-
American voting-age population of 39.36 percent rather than
keeping Pender County whole and leaving District 18 with
an African-American voting-age population of 35.33 percent.
We reject that claim.
First, we conclude, petitioners’ theory is contrary to the
mandate of § 2. The statute requires a showing that minori
ties “have less opportunity than other members of the elec
torate to . . . elect representatives of their choice.” 42
U. S. C. § 1973(b) (2000 ed.). But because they form only 39
percent of the voting-age population in District 18, African-
Americans standing alone have no better or worse opportu
nity to elect a candidate than does any other group of voters
with the same relative voting strength. That is, African-
Americans in District 18 have the opportunity to join other
voters—including other racial minorities, or whites, or
both—to reach a majority and elect their preferred candi
date. They cannot, however, elect that candidate based on
their own votes and without assistance from others. Recog
nizing a § 2 claim in this circumstance would grant minority
voters “a right to preserve their strength for the purposes

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15 Cite as: 556 U. S. 1 (2009)
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of forging an advantageous political alliance.” Hall v. Vir
ginia, 385 F. 3d 421, 431 (CA4 2004); see also Voinovich,
507 U. S., at 154 (minorities in crossover districts “could not
dictate electoral outcomes independently”). Nothing in § 2
grants special protection to a minority group’s right to form
political coalitions. “[M]inority voters are not immune from
the obligation to pull, haul, and trade to find common political
ground.” De Grandy, 512 U. S., at 1020.
Although the Court has reserved the question we confront
today and has cautioned that the Gingles requirements “can
not be applied mechanically,” Voinovich, supra, at 158, the
reasoning of our cases does not support petitioners’ claims.
Section 2 does not impose on those who draw election dis
tricts a duty to give minority voters the most potential, or
the best potential, to elect a candidate by attracting cross
over voters. In setting out the first requirement for § 2
claims, the Gingles Court explained that “[u]nless minority
voters possess the potential to elect representatives in the
absence of the challenged structure or practice, they cannot
claim to have been injured by that structure or practice.”
478 U. S., at 50, n. 17. The Growe Court stated that the first
Gingles requirement is “needed to establish that the minor
ity has the potential to elect a representative of its own
choice in some single-member district.” 507 U. S., at 40.
Without such a showing, “there neither has been a wrong
nor can be a remedy.” Id., at 41. There is a difference be
tween a racial minority group’s “own choice” and the choice
made by a coalition. In Voinovich, the Court stated that
the first Gingles requirement “would have to be modified or
eliminated” to allow crossover-district claims. 507 U. S., at
158. Only once, in dicta, has this Court framed the first Gin
gles requirement as anything other than a majority-minority
rule. See De Grandy, 512 U. S., at 1008 (requiring “a suffi
ciently large minority population to elect candidates of its
choice”). And in the same case, the Court rejected the
proposition, inherent in petitioners’ claim here, that § 2 enti

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16 BARTLETT v. STRICKLAND
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tles minority groups to the maximum possible voting
strength:
“[R]eading § 2 to define dilution as any failure to maxi
mize tends to obscure the very object of the statute and
to run counter to its textually stated purpose. One may
suspect vote dilution from political famine, but one is not
entitled to suspect (much less infer) dilution from mere
failure to guarantee a political feast.” Id., at 1016–1017.
Allowing crossover-district claims would require us to re
vise and reformulate the Gingles threshold inquiry that has
been the baseline of our § 2 jurisprudence. Mandatory rec
ognition of claims in which success for a minority depends
upon crossover majority voters would create serious tension
with the third Gingles requirement that the majority votes
as a bloc to defeat minority-preferred candidates. It is dif
ficult to see how the majority-bloc-voting requirement could
be met in a district where, by definition, white voters join in
sufficient numbers with minority voters to elect the minori
ty’s preferred candidate. (We are skeptical that the bloc
voting test could be satisfied here, for example, where minor
ity voters in District 18 cannot elect their candidate of choice
without support from almost 20 percent of white voters.
We do not confront that issue, however, because for some
reason respondents conceded the third Gingles requirement
in state court.)
As the Gingles Court explained, “in the absence of signifi
cant white bloc voting it cannot be said that the ability of
minority voters to elect their chosen representatives is infe
rior to that of white voters.” 478 U. S., at 49, n. 15. Were
the Court to adopt petitioners’ theory and dispense with the
majority-minority requirement, the ruling would call in
question the Gingles framework the Court has applied under
§ 2. See LULAC, 548 U. S., at 490, n. 8. (Souter, J., concur
ring in part and dissenting in part) (“All aspects of our estab
lished analysis for majority-minority districts in Gingles and

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its progeny may have to be rethought in analyzing ostensible
coalition districts”); cf. Metts v. Murphy, 363 F. 3d 8, 12 (CA1
2004) (en banc) (per curiam) (allowing influence-district
claim to survive motion to dismiss but noting “there is ten
sion in this case for plaintiffs in any effort to satisfy both the
first and third prong of Gingles”).
We find support for the majority-minority requirement in
the need for workable standards and sound judicial and legis
lative administration. The rule draws clear lines for courts
and legislatures alike. The same cannot be said of a less
exacting standard that would mandate crossover districts
under § 2. Determining whether a § 2 claim would lie—i. e.,
determining whether potential districts could function as
crossover districts—would place courts in the untenable po
sition of predicting many political variables and tying them
to race-based assumptions. The Judiciary would be directed
to make predictions or adopt premises that even experienced
polling analysts and political experts could not assess with
certainty, particularly over the long term. For example,
courts would be required to pursue these inquiries: What
percentage of white voters supported minority-preferred
candidates in the past? How reliable would the crossover
votes be in future elections? What types of candidates have
white and minority voters supported together in the past
and will those trends continue? Were past crossover votes
based on incumbency and did that depend on race? What
are the historical turnout rates among white and minority
voters and will they stay the same? Those questions are
speculative, and the answers (if they could be supposed)
would prove elusive. A requirement to draw election dis
tricts on answers to these and like inquiries ought not to be
inferred from the text or purpose of § 2. Though courts are
capable of making refined and exacting factual inquiries,
they “are inherently ill-equipped” to “make decisions based
on highly political judgments” of the sort that crossover
district claims would require. Holder, 512 U. S., at 894

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18 BARTLETT v. STRICKLAND
Opinion of Kennedy, J.
(Thomas, J., concurring in judgment). There is an underly
ing principle of fundamental importance: We must be most
cautious before interpreting a statute to require courts to
make inquiries based on racial classifications and race-based
predictions. The statutory mandate petitioners urge us to
find in § 2 raises serious constitutional questions. See infra,
at 21–23.
Heightening these concerns even further is the fact that
§ 2 applies nationwide to every jurisdiction that must draw
lines for election districts required by state or local law.
Crossover-district claims would require courts to make pre
dictive political judgments not only about familiar, two-party
contests in large districts but also about regional and local
jurisdictions that often feature more than two parties or can
didates. Under petitioners’ view courts would face the dif
ficult task of discerning crossover patterns in nonpartisan
contests for a city commission, a school board, or a local
water authority. The political data necessary to make such
determinations are nonexistent for elections in most of those
jurisdictions. And predictions would be speculative at best
given that, especially in the context of local elections, voters’
personal affiliations with candidates and views on particular
issues can play a large role.
Unlike any of the standards proposed to allow crossover
district claims, the majority-minority rule relies on an objec
tive, numerical test: Do minorities make up more than 50
percent of the voting-age population in the relevant geo
graphic area? That rule provides straightforward guidance
to courts and to those officials charged with drawing district
lines to comply with § 2. See LULAC, supra, at 485 (opinion
of Souter, J.) (recognizing need for “clear-edged rule”).
Where an election district could be drawn in which minority
voters form a majority but such a district is not drawn, or
where a majority-minority district is cracked by assigning
some voters elsewhere, then—assuming the other Gingles
factors are also satisfied—denial of the opportunity to elect

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19 Cite as: 556 U. S. 1 (2009)
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a candidate of choice is a present and discernible wrong that
is not subject to the high degree of speculation and predic
tion attendant upon the analysis of crossover claims. Not
an arbitrary invention, the majority-minority rule has its
foundation in principles of democratic governance. The spe
cial significance, in the democratic process, of a majority
means it is a special wrong when a minority group has 50
percent or more of the voting population and could constitute
a compact voting majority but, despite racially polarized bloc
voting, that group is not put into a district.
Given the text of § 2, our cases interpreting that provision,
and the many difficulties in assessing § 2 claims without the
restraint and guidance provided by the majority-minority
rule, no federal court of appeals has held that § 2 requires
creation of coalition districts. Instead, all to consider the
question have interpreted the first Gingles factor to require
a majority-minority standard. See Hall, 385 F. 3d, at 427–
430 (CA4 2004), cert. denied, 544 U. S. 961 (2005); Valdespino
v. Alamo Heights Independent School Dist., 168 F. 3d 848,
852–853 (CA5 1999), cert. denied, 528 U. S. 1114 (2000);
Cousin v. Sundquist, 145 F. 3d 818, 828–829 (CA6 1998), cert.
denied, 525 U. S. 1138 (1999); Sanchez v. Colorado, 97 F. 3d
1303, 1311–1312 (CA10 1996), cert. denied, 520 U. S. 1229
(1997); Romero v. Pomona, 883 F. 2d 1418, 1424, n. 7, 1425–
1426 (CA9 1989), overruled on other grounds, 914 F. 2d 1136,
1141 (CA9 1990); McNeil v. Springfield Park Dist., 851 F. 2d
937, 947 (CA7 1988), cert. denied, 490 U. S. 1031 (1989). Cf.
Metts, supra, at 11 (expressing unwillingness “at the com
plaint stage to foreclose the possibility” of influence-district
claims). We decline to depart from the uniform interpreta
tion of § 2 that has guided federal courts and state and local
officials for more than 20 years.
To be sure, the Gingles requirements “cannot be applied
mechanically and without regard to the nature of the claim.”
Voinovich, 507 U. S., at 158. It remains the rule, however,
that a party asserting § 2 liability must show by a preponder

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20 BARTLETT v. STRICKLAND
Opinion of Kennedy, J.
ance of the evidence that the minority population in the po
tential election district is greater than 50 percent. No one
contends that the African-American voting-age population in
District 18 exceeds that threshold. Nor does this case in
volve allegations of intentional and wrongful conduct. We
therefore need not consider whether intentional discrimina
tion affects the Gingles analysis. Cf. Brief for United States
as Amicus Curiae 14 (evidence of discriminatory intent
“tends to suggest that the jurisdiction is not providing an
equal opportunity to minority voters to elect the representa
tive of their choice, and it is therefore unnecessary to con
sider the majority-minority requirement before proceeding
to the ultimate totality-of-the-circumstances analysis”); see
also Garza v. County of Los Angeles, 918 F. 2d 763, 771 (CA9
1990). Our holding does not apply to cases in which there
is intentional discrimination against a racial minority.
B
In arguing for a less restrictive interpretation of the first
Gingles requirement petitioners point to the text of § 2
and its guarantee that political processes be “equally open to
participation” to protect minority voters’ “opportunity . . . to
elect representatives of their choice.” 42 U. S. C. § 1973(b)
(2000 ed.). An “opportunity,” petitioners argue, occurs in
crossover districts as well as majority-minority districts;
and these extended opportunities, they say, require § 2
protection.
But petitioners put emphasis on the word “opportunity” at
the expense of the word “equally.” The statute does not
protect any possible opportunity or mechanism through
which minority voters could work with other constituencies
to elect their candidate of choice. Section 2 does not guar
antee minority voters an electoral advantage. Minority
groups in crossover districts cannot form a voting majority
without crossover voters. In those districts minority voters
have the same opportunity to elect their candidate as any
other political group with the same relative voting strength.

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The majority-minority rule, furthermore, is not at odds
with § 2’s totality-of-the-circumstances test. The Court in
De Grandy confirmed “the error of treating the three Gin
gles conditions as exhausting the enquiry required by § 2.”
512 U. S., at 1013. Instead the Gingles requirements are
preconditions, consistent with the text and purpose of § 2, to
help courts determine which claims could meet the totality
of-the-circumstances standard for a § 2 violation. See
Growe, 507 U. S., at 40 (describing the “Gingles threshold
factors”).
To the extent there is any doubt whether § 2 calls for the
majority-minority rule, we resolve that doubt by avoiding
serious constitutional concerns under the Equal Protection
Clause. See Clark v. Martinez, 543 U. S. 371, 381–382 (2005)
(canon of constitutional avoidance is “a tool for choosing be
tween competing plausible interpretations of a statutory
text, resting on the reasonable presumption that Congress
did not intend the alternative which raises serious constitu
tional doubts”). Of course, the “moral imperative of racial
neutrality is the driving force of the Equal Protection
Clause,” and racial classifications are permitted only “as a
last resort.” Richmond v. J. A. Croson Co., 488 U. S. 469,
518, 519 (1989) (Kennedy, J., concurring in part and concur
ring in judgment). “Racial classifications with respect to
voting carry particular dangers. Racial gerrymandering,
even for remedial purposes, may balkanize us into competing
racial factions; it threatens to carry us further from the goal
of a political system in which race no longer matters—a goal
that the Fourteenth and Fifteenth Amendments embody, and
to which the Nation continues to aspire.” Shaw v. Reno,
509 U. S. 630, 657 (1993). If § 2 were interpreted to require
crossover districts throughout the Nation, “it would unnec
essarily infuse race into virtually every redistricting, raising
serious constitutional questions.” LULAC, 548 U. S., at 446
(opinion of Kennedy, J.); see also Ashcroft, 539 U. S., at 491
(Kennedy, J., concurring). That interpretation would re
sult in a substantial increase in the number of mandatory

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22 BARTLETT v. STRICKLAND
Opinion of Kennedy, J.
districts drawn with race as “the predominant factor moti
vating the legislature’s decision.” Miller v. Johnson, 515
U. S. 900, 916 (1995).
On petitioners’ view of the case courts and legislatures
would need to scrutinize every factor that enters into dis
tricting to gauge its effect on crossover voting. Injecting
this racial measure into the nationwide districting process
would be of particular concern with respect to consideration
of party registration or party influence. The easiest and
most likely alliance for a group of minority voters is one with
a political party, and some have suggested using minority
voters’ strength within a particular party as the proper
yardstick under the first Gingles requirement. See, e. g.,
LULAC, supra, at 485–486 (opinion of Souter, J.) (requiring
only “that minority voters . . . constitute a majority of those
voting in the primary of . . . the party tending to win in the
general election”). That approach would replace an objec
tive, administrable rule with a difficult “judicial inquiry into
party rules and local politics” to determine whether a minor
ity group truly “controls” the dominant party’s primary proc
ess. McLoughlin, Gingles in Limbo: Coalitional Districts,
Party Primaries and Manageable Vote Dilution Claims, 80
N. Y. U. L. Rev. 312, 349 (2005). More troubling still is the
inquiry’s fusion of race and party affiliation as a determinant
when partisan considerations themselves may be suspect in
the drawing of district lines. See Vieth v. Jubelirer, 541
U. S. 267, 317 (2004) (Stevens, J., dissenting); id., at 316
(Kennedy, J., concurring in judgment); see also Pildes 1565
(crossover-district requirement would essentially result in
political party “entitlement to . . . a certain number of
seats”). Disregarding the majority-minority rule and rely
ing on a combination of race and party to presume an effec
tive majority would involve the law and courts in a perilous
enterprise. It would rest on judicial predictions, as a matter
of law, that race and party would hold together as an effec
tive majority over time—at least for the decennial apportion

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23 Cite as: 556 U. S. 1 (2009)
Opinion of Kennedy, J.
ment cycles and likely beyond. And thus would the
relationship between race and party further distort and
frustrate the search for neutral factors and principled ration
ales for districting.
Petitioners’ approach would reverse the canon of avoid
ance. It invites the divisive constitutional questions that
are both unnecessary and contrary to the purposes of our
precedents under the Voting Rights Act. Given the conse
quences of extending racial considerations even further into
the districting process, we must not interpret § 2 to require
crossover districts.
C
Our holding that § 2 does not require crossover districts
does not consider the permissibility of such districts as
a matter of legislative choice or discretion. Assuming a
majority-minority district with a substantial minority popu
lation, a legislative determination, based on proper factors,
to create two crossover districts may serve to diminish the
significance and influence of race by encouraging minority
and majority voters to work together toward a common goal.
The option to draw such districts gives legislatures a choice
that can lead to less racial isolation, not more. And as the
Court has noted in the context of § 5 of the Voting Rights
Act, “various studies have suggested that the most effective
way to maximize minority voting strength may be to create
more influence or [crossover] districts.” Ashcroft, 539 U. S.,
at 482. Much like § 5, § 2 allows States to choose their own
method of complying with the Voting Rights Act, and we
have said that may include drawing crossover districts. See
id., at 480–483. When we address the mandate of § 2, how
ever, we must note it is not concerned with maximizing mi
nority voting strength, De Grandy, supra, at 1022; and, as a
statutory matter, § 2 does not mandate creating or preserv
ing crossover districts.
Our holding also should not be interpreted to entrench
majority-minority districts by statutory command, for that,

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24 BARTLETT v. STRICKLAND
Opinion of Kennedy, J.
too, could pose constitutional concerns. See Miller v. John
son, supra; Shaw v. Reno, 509 U. S. 630. States that wish
to draw crossover districts are free to do so where no other
prohibition exists. Majority-minority districts are only re
quired if all three Gingles factors are met and if § 2 applies
based on a totality of the circumstances. In areas with sub
stantial crossover voting it is unlikely that the plaintiffs
would be able to establish the third Gingles precondition—
bloc voting by majority voters. See supra, at 16. In those
areas majority-minority districts would not be required in
the first place; and in the exercise of lawful discretion States
could draw crossover districts as they deemed appropriate.
See Pildes 1567 (“Districts could still be designed in such
places that encouraged coalitions across racial lines, but
these districts would result from legislative choice, not . . .
obligation”). States can—and in proper cases should—de
fend against alleged § 2 violations by pointing to crossover
voting patterns and to effective crossover districts. Those
can be evidence, for example, of diminished bloc voting under
the third Gingles factor or of equal political opportunity
under the § 2 totality-of-the-circumstances analysis. And if
there were a showing that a State intentionally drew district
lines in order to destroy otherwise effective crossover dis
tricts, that would raise serious questions under both the
Fourteenth and Fifteenth Amendments. See Reno v. Bos
sier Parish School Bd., 520 U. S. 471, 481–482 (1997); Brief
for United States as Amicus Curiae 13–14. There is no evi
dence of discriminatory intent in this case, however. Our
holding recognizes only that there is no support for the claim
that § 2 can require the creation of crossover districts in the
first instance.
Petitioners claim the majority-minority rule is inconsistent
with § 5, but we rejected a similar argument in LULAC, 548
U. S., at 446 (opinion of Kennedy, J.). The inquiries under
§§ 2 and 5 are different. Section 2 concerns minority

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Opinion of Kennedy, J.
groups’ opportunity “ to elect representatives of their
choice,” 42 U. S. C. § 1973(b) (2000 ed.), while the more strin
gent § 5 asks whether a change has the purpose or effect of
“denying or abridging the right to vote,” § 1973c. See
LULAC, supra, at 446; Bossier Parish, supra, at 476–480.
In LULAC, we held that although the presence of influence
districts is relevant for the § 5 retrogression analysis, “the
lack of such districts cannot establish a § 2 violation.” 548
U. S., at 446 (opinion of Kennedy, J.); see also Ashcroft, 539
U. S., at 482–483. The same analysis applies for crossover
districts: Section 5 “leaves room” for States to employ cross
over districts, id., at 483, but § 2 does not require them.
IV
Some commentators suggest that racially polarized voting
is waning—as evidenced by, for example, the election of mi
nority candidates where a majority of voters are white. See
Note, The Future of Majority-Minority Districts in Light of
Declining Racially Polarized Voting, 116 Harv. L. Rev. 2208,
2209 (2003); see also id., at 2216–2222; Pildes 1529–1539; Bul
lock & Dunn, The Demise of Racial Districting and the Fu
ture of Black Representation, 48 Emory L. J. 1209 (1999).
Still, racial discrimination and racially polarized voting are
not ancient history. Much remains to be done to ensure that
citizens of all races have equal opportunity to share and par
ticipate in our democratic processes and traditions; and § 2
must be interpreted to ensure that continued progress.
It would be an irony, however, if § 2 were interpreted to
entrench racial differences by expanding a “statute meant
to hasten the waning of racism in American politics.”
De Grandy, 512 U. S., at 1020. Crossover districts are, by
definition, the result of white voters joining forces with mi
nority voters to elect their preferred candidate. The Voting
Rights Act was passed to foster this cooperation. We de
cline now to expand the reaches of § 2 to require, by force of

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26 BARTLETT v. STRICKLAND
Souter, J., dissenting
law, the voluntary cooperation our society has achieved.
Only when a geographically compact group of minority vot
ers could form a majority in a single-member district has the
first Gingles requirement been met.
The judgment of the Supreme Court of North Carolina
is affirmed.
It is so ordered.
Justice Thomas, with whom Justice Scalia joins, con
curring in the judgment.
I continue to adhere to the views expressed in my opinion
in Holder v. Hall, 512 U. S. 874, 891 (1994) (opinion concur
ring in judgment). The text of § 2 of the Voting Rights Act
of 1965 does not authorize any vote dilution claim, regardless
of the size of the minority population in a given district.
See 42 U. S. C. § 1973(a) (2000 ed.) (permitting only a chal
lenge to a “voting qualification or prerequisite to voting or
standard, practice, or procedure”); see also Holder, supra, at
893 (stating that the terms “ ‘standard, practice, or proce
dure’ ” “reach only state enactments that limit citizens’ ac
cess to the ballot”). I continue to disagree, therefore, with
the framework set forth in Thornburg v. Gingles, 478 U. S.
30 (1986), for analyzing vote dilution claims because it has no
basis in the text of § 2. I would not evaluate any Voting
Rights Act claim under a test that “has produced such a
disastrous misadventure in judicial policymaking.” Holder,
supra, at 893. For these reasons, I concur only in the
judgment.
Justice Souter, with whom Justice Stevens, Justice
Ginsburg, and Justice Breyer join, dissenting.
The question in this case is whether a minority with under
50% of the voting population of a proposed voting district
can ever qualify under § 2 of the Voting Rights Act of 1965
(VRA) as residents of a putative district whose minority vot

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27 Cite as: 556 U. S. 1 (2009)
Souter, J., dissenting
ers would have an opportunity “to elect representatives of
their choice.” 42 U. S. C. § 1973(b) (2000 ed.). If the answer
is no, minority voters in such a district will have no right to
claim relief under § 2 from a statewide districting scheme
that dilutes minority voting rights. I would hold that the
answer in law as well as in fact is sometimes yes: a district
may be a minority-opportunity district so long as a cohesive
minority population is large enough to elect its chosen can
didate when combined with a reliable number of crossover
voters from an otherwise polarized majority.
In the plurality’s view, only a district with a minority pop
ulation making up 50% or more of the citizen voting age pop
ulation (CVAP) can provide a remedy to minority voters
lacking an opportunity “to elect representatives of their
choice.” This is incorrect as a factual matter if the statutory
phrase is given its natural meaning; minority voters in dis
tricts with minority populations under 50% routinely “elect
representatives of their choice.” The effects of the plural
ity’s unwillingness to face this fact are disturbing by any
measure and flatly at odds with the obvious purpose of the
VRA. If districts with minority populations under 50% can
never count as minority-opportunity districts to remedy a
violation of the States’ obligation to provide equal electoral
opportunity under § 2, States will be required under the plu
rality’s rule to pack black voters into additional majority
minority districts, contracting the number of districts where
racial minorities are having success in transcending racial
divisions in securing their preferred representation. The
object of the VRA will now be promoting racial blocs, and
the role of race in districting decisions as a proxy for political
identification will be heightened by any measure.
I
Recalling the basic premises of vote-dilution claims under
§ 2 will show just how far astray the plurality has gone.

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28 BARTLETT v. STRICKLAND
Souter, J., dissenting
Section 2 of the VRA prohibits districting practices that “re
sul[t] in a denial or abridgement of the right of any citizen of
the United States to vote on account of race.” 42 U. S. C.
§ 1973(a). A denial or abridgment is established if, “based
on the totality of circumstances,” it is shown that members
of a racial minority “have less opportunity than other mem
bers of the electorate to participate in the political process
and to elect representatives of their choice.” § 1973(b).
Since § 2 was amended in 1982, 96 Stat. 134, we have read
it to prohibit practices that result in “vote dilution,” see
Thornburg v. Gingles, 478 U. S. 30 (1986), understood as dis
tributing politically cohesive minority voters through voting
districts in ways that reduce their potential strength. See
id., at 47–48. There are two classic patterns. Where vot
ing is racially polarized, a districting plan can systemically
discount the minority vote either “by the dispersal of blacks
into districts in which they constitute an ineffective minority
of voters” or from “the concentration of blacks into districts
where they constitute an excessive majority,” so as to elimi
nate their influence in neighboring districts. Id., at 46, n. 11.
Treating dilution as a remediable harm recognizes that § 2
protects not merely the right of minority voters to put bal
lots in a box, but to claim a fair number of districts in which
their votes can be effective. See id., at 47.
Three points follow. First, to speak of a fair chance to
get the representation desired, there must be an identifiable
baseline for measuring a group’s voting strength. Id., at 88
(O’Connor, J., concurring in judgment) (“In order to evaluate
a claim that a particular multimember district or single
member district has diluted the minority group’s voting
strength to a degree that violates § 2, . . . it is . . . neces
sary to construct a measure of ‘undiluted’ minority voting
strength”). Several baselines can be imagined; one could,
for example, compare a minority’s voting strength under a
particular districting plan with the maximum strength possi

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29 Cite as: 556 U. S. 1 (2009)
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ble under any alternative.1 Not surprisingly, we have con
clusively rejected this approach; the VRA was passed to
guarantee minority voters a fair game, not a killing. See
Johnson v. De Grandy, 512 U. S. 997, 1016–1017 (1994). We
have held that the better baseline for measuring opportunity
to elect under § 2, although not dispositive, is the minority’s
rough proportion of the relevant population. Id., at 1013–
1023. Thus, in assessing § 2 claims under a totality of the
circumstances, including the facts of history and geography,
the starting point is a comparison of the number of districts
where minority voters can elect their chosen candidate with
the group’s population percentage. Ibid.; see also League of
United Latin American Citizens v. Perry, 548 U. S. 399, 436
(2006) (LULAC) (“We proceed now to the totality of the
circumstances, and first to the proportionality inquiry, com
paring the percentage of total districts that are [minority]
opportunity districts with the [minority] share of the citizen
voting-age population”).2
1 We have previously illustrated this in stylized fashion:
“Assume a hypothetical jurisdiction of 1,000 voters divided into 10 dis
tricts of 100 each, where members of a minority group make up 40 percent
of the voting population and voting is totally polarized along racial lines.
With the right geographic dispersion to satisfy the compactness require
ment, and with careful manipulation of district lines, the minority voters
might be placed in control of as many as 7 of the 10 districts. Each such
district could be drawn with at least 51 members of the minority group,
and whether the remaining minority voters were added to the groupings
of 51 for safety or scattered in the other three districts, minority voters
would be able to elect candidates of their choice in all seven districts.”
Johnson v. De Grandy, 512 U. S. 997, 1016 (1994).
2 Of course, this does not create an entitlement to proportionate minor
ity representation. Nothing in the statute promises electoral success.
Rather, § 2 simply provides that, subject to qualifications based on a total
ity of circumstances, minority voters are entitled to a practical chance to
compete in a roughly proportionate number of districts. Id., at 1014,
n. 11. “[M]inority voters are not immune from the obligation to pull, haul,
and trade to find common political ground.” Id., at 1020.

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30 BARTLETT v. STRICKLAND
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Second, the significance of proportionality means that a § 2
claim must be assessed by looking at the overall effect of a
multidistrict plan. A State with one congressional seat can
not dilute a minority’s congressional vote, and only the sys
temic submergence of minority votes where a number of
single-member districts could be drawn can be treated as
harm under § 2. So a § 2 complaint must look to an entire
districting plan (normally, statewide), alleging that the chal
lenged plan creates an insufficient number of minority
opportunity districts in the territory as a whole. See id.,
at 436–437.
Third, while a § 2 violation ultimately results from the di
lutive effect of a districting plan as a whole, a § 2 plaintiff
must also be able to place himself in a reasonably compact
district that could have been drawn to improve upon the plan
actually selected. See, e. g., De Grandy, supra, at 1001–
1002. That is, a plaintiff must show both an overall defi
ciency and a personal injury open to redress.
Our first essay at understanding these features of statu
tory vote dilution was Thornburg v. Gingles, which asked
whether a multimember district plan for choosing repre
sentatives by at-large voting deprived minority voters of an
equal opportunity to elect their preferred candidates. In
answering, we set three now-familiar conditions that a § 2
claim must meet at the threshold before a court will analyze
it under the totality of circumstances:
“First, the minority group must be able to demonstrate
that it is sufficiently large and geographically compact
to constitute a majority in a single-member district. . . .
Second, the minority group must be able to show that it
is politically cohesive. . . . Third, the minority must be
able to demonstrate that the white majority votes suffi
ciently as a bloc to enable it . . . usually to defeat the
minority’s preferred candidate.” 478 U. S., at 50–51.

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As we have emphasized over and over, the Gingles condi
tions do not state the ultimate standard under § 2, nor could
they, since the totality of the circumstances standard has
been set explicitly by Congress. See LULAC, supra, at
425–426; De Grandy, supra, at 1011. Instead, each condi
tion serves as a gatekeeper, ensuring that a plaintiff who
proceeds to plenary review has a real chance to show a re
dressable violation of the ultimate § 2 standard. The third
condition, majority racial bloc voting, is necessary to estab
lish the premise of vote-dilution claims: that the minority as
a whole is placed at a disadvantage owing to race, not the
happenstance of independent politics. Gingles, 478 U. S.,
at 51. The second, minority cohesion, is there to show that
minority voters will vote together to elect a distinct repre
sentative of choice. Ibid. And the first, a large and geo
graphically compact minority population, is the condition for
demonstrating that a dilutive plan injures the § 2 plaintiffs
by failing to draw an available remedial district that would
give them a chance to elect their chosen candidate. Growe
v. Emison, 507 U. S. 25, 40–41 (1993); Gingles, supra, at 50.
II
Though this case arose under the Constitution of North
Carolina, the dispositive issue is one of federal statutory law:
whether a district with a minority population under 50%, but
large enough to elect its chosen candidate with the help of
majority voters disposed to support the minority favorite,
can ever count as a district where minority voters have the
opportunity “to elect representatives of their choice” for pur
poses of § 2. I think it clear from the nature of a vote
dilution claim and the text of § 2 that the answer must be
yes. There is nothing in the statutory text to suggest that
Congress meant to protect minority opportunity to elect
solely by the creation of majority-minority districts. See
Voinovich v. Quilter, 507 U. S. 146, 155 (1993) (“[Section 2]

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32 BARTLETT v. STRICKLAND
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says nothing about majority-minority districts”). On the
contrary, § 2 “focuses exclusively on the consequences of ap
portionment,” ibid., as Congress made clear when it explic
itly prescribed the ultimate functional approach: a totality of
the circumstances test. See 42 U. S. C. § 1973(b) (“[a] viola
tion . . . is established if, based on the totality of circum
stances, it is shown . . . ”). And a functional analysis leaves
no doubt that crossover districts vindicate the interest ex
pressly protected by § 2: the opportunity to elect a desired
representative.
It has been apparent from the moment the Court first
took up § 2 that no reason exists in the statute to treat a
crossover district as a less legitimate remedy for dilution
than a majority-minority one (let alone to rule it out). See
Gingles, supra, at 90, n. 1 (O’Connor, J., concurring in judg
ment) (“[I]f a minority group that is not large enough to con
stitute a voting majority in a single-member district can
show that white support would probably . . . enable the elec
tion of the candidates its members prefer, that minority
group would appear to have demonstrated that, at least
under this measure of its voting strength, it would be able
to elect some candidates of its choice”); see also Pildes, Is
Voting-Rights Law Now at War With Itself? Social Science
and Voting Rights in the 2000s, 80 N. C. L. Rev. 1517, 1553
(2002) (hereinafter Pildes) (“What should be so magical,
then, about whether there are enough black voters to become
a formal majority so that a conventional ‘safe’ district can be
created? If a safe and a coalitional district have the same
probability of electing a black candidate, are they not func
tionally identical, by definition, with respect to electing
such candidates?”).
As these earlier comments as much as say, whether a dis
trict with a minority population under 50% of the CVAP may
redress a violation of § 2 is a question of fact with an obvious
answer: of course minority voters constituting less than 50%
of the voting population can have an opportunity to elect the

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33 Cite as: 556 U. S. 1 (2009)
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candidates of their choice, as amply shown by empirical stud
ies confirming that such minority groups regularly elect
their preferred candidates with the help of modest crossover
by members of the majority. See, e. g., id., at 1531–1534,
1538. The North Carolina Supreme Court, for example, de
termined that voting districts with a black voting age popu
lation of as little as 38.37% have an opportunity to elect black
candidates, Pender Cty. v. Bartlett, 361 N. C. 491, 494–495,
649 S. E. 2d 364, 366–367 (2007), a factual finding that has
gone unchallenged and is well supported by electoral results
in North Carolina. Of the nine House districts in which
blacks make up more than 50% of the voting age population
(VAP), all but two elected a black representative in the 2004
election. See App. 109. Of the 12 additional House dis
tricts in which blacks are over 39% of the VAP, all but one
elected a black representative in the 2004 election. Ibid.
It would surely surprise legislators in North Carolina to sug
gest that black voters in these 12 districts cannot possibly
have an opportunity to “elect [the] representatives of their
choice.”
It is of course true that the threshold population sufficient
to provide minority voters with an opportunity to elect their
candidates of choice is elastic, and the proportions will likely
shift in the future, as they have in the past. See Pildes
1527–1532 (explaining that blacks in the 1980s required well
over 50% of the population in a district to elect the candi
dates of their choice, but that this number has gradually
fallen to well below 50%); id., at 1527, n. 26 (stating that
some courts went so far as to refer to 65% “as a ‘rule of
thumb’ for the black population required to constitute a safe
district”). That is, racial polarization has declined, and if it
continues downward the first Gingles condition will get eas
ier to satisfy.
But this is no reason to create an arbitrary threshold; the
functional approach will continue to allow dismissal of claims
for districts with minority populations too small to demon

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34 BARTLETT v. STRICKLAND
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strate an ability to elect, and with “crossovers” too numerous
to allow an inference of vote dilution in the first place. No
one, for example, would argue based on the record of experi
ence in this case that a district with a 25% black population
would meet the first Gingles condition. And the third Gin
gles requirement, majority-bloc voting, may well provide an
analytical limit to claims based on crossover districts. See
LULAC, 548 U. S., at 490, n. 8 (Souter, J., concurring in part
and dissenting in part) (noting the interrelationship of the
first and third Gingles factors); see also post, at 44–48
(Breyer, J., dissenting) (looking to the third Gingles condi
tion to suggest a mathematical limit to the minority popula
tion necessary for a cognizable crossover district). But
whatever this limit may be, we have no need to set it here,
since the respondent state officials have stipulated to
majority-bloc voting, App. to Pet. for Cert. 130a. In sum,
§ 2 addresses voting realities, and for practical purposes a
39%-minority district in which we know minorities have the
potential to elect their preferred candidate is every bit as
good as a 50%-minority district.
In fact, a crossover district is better. Recognizing cross
over districts has the value of giving States greater flexibil
ity to draw districting plans with a fair number of minority
opportunity districts, and this in turn allows for a beneficent
reduction in the number of majority-minority districts with
their “quintessentially race-conscious calculus,” De Grandy,
512 U. S., at 1020, thereby moderating reliance on race as
an exclusive determinant in districting decisions, cf. Shaw
v. Reno, 509 U. S. 630 (1993). See also Pildes 1547–1548
(“In contrast to the Court’s concerns with bizarrely designed
safe districts, it is hard to see how coalitional districts could
‘convey the message that political identity is, or should be,
predominantly racial.’ . . . Coalitional districts would seem
to encourage and require a kind of integrative, cross-racial
political alliance that might be thought consistent with, even
the very ideal of, both the VRA and the U. S. Constitution”
(quoting Bush v. Vera, 517 U. S. 952, 980 (1996))). A cross

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35 Cite as: 556 U. S. 1 (2009)
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over is thus superior to a majority-minority district precisely
because it requires polarized factions to break out of the
mold and form the coalitions that discourage racial divisions.
III
A
The plurality’s contrary conclusion that § 2 does not recog
nize a crossover claim is based on a fundamental misunder
standing of vote-dilution claims, a mistake epitomized in the
following assessment of the crossover district in question:
“[B]ecause they form only 39 percent of the voting-age
population in District 18, African-Americans standing
alone have no better or worse opportunity to elect a can
didate than does any other group of voters with the
same relative voting strength [in District 18].” Ante,
at 14.
See also ante, at 20 (“[In crossover districts,] minority
voters have the same opportunity to elect their candidate
as any other political group with the same relative voting
strength”).
The claim that another political group in a particular dis
trict might have the same relative voting strength as the
minority if it had the same share of the population takes the
form of a tautology: the plurality simply looks to one district
and says that a 39% group of blacks is no worse off than a
39% group of whites would be. This statement might be
true, or it might not be, and standing alone it demonstrates
nothing.
Even if the two 39% groups were assumed to be compara
ble in fact because they will attract sufficient crossover (and
so should be credited with satisfying the first Gingles condi
tion), neither of them could prove a § 2 violation without
looking beyond the 39% district and showing a dispropor
tionately small potential for success in the State’s overall
configuration of districts. As this Court has explained be
fore, the ultimate question in a § 2 case (that is, whether the

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36 BARTLETT v. STRICKLAND
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minority group in question is being denied an equal opportu
nity to participate and elect) can be answered only by exam
ining the broader pattern of districts to see whether the mi
nority is being denied a roughly proportionate opportunity.
See LULAC, supra, at 436–437. Hence, saying one group’s
39% equals another’s, even if true in particular districts
where facts are known, does not mean that either, both, or
neither group could show a § 2 violation. The plurality sim
ply fails to grasp that an alleged § 2 violation can only be
proved or disproved by looking statewide.
B
The plurality’s more specific justifications for its counter
factual position are no more supportable than its 39%
tautology.
1
The plurality seems to suggest that our prior cases some
how require its conclusion that a minority population under
50% will never support a § 2 remedy, emphasizing that Gin
gles spoke of a majority and referred to the requirement that
minority voters have “ ‘the potential to elect’ ” their chosen
representatives. Ante, at 15 (quoting Gingles, 478 U. S., at
50, n. 17). It is hard to know what to make of this point
since the plurality also concedes that we have explicitly and
repeatedly reserved decision on today’s question. See
LULAC, supra, at 443 (plurality opinion); De Grandy, supra,
at 1009; Voinovich, 507 U. S., at 154; Growe, 507 U. S., at
41, n. 5; Gingles, supra, at 46–47, n. 12. In fact, in our
more recent cases applying § 2, Court majorities have formu
lated the first Gingles prong in a way more consistent with
a functional approach. See LULAC, supra, at 430 (“[I]n the
context of a challenge to the drawing of district lines, ‘the
first Gingles condition requires the possibility of creating
more than the existing number of reasonably compact dis
tricts with a sufficiently large minority population to elect
candidates of its choice’ ” (quoting De Grandy, supra, at

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37 Cite as: 556 U. S. 1 (2009)
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1008)). These Court majorities get short shrift from to
day’s plurality.
In any event, even if we ignored Gingles’s reservation of
today’s question and looked to Gingles’s “potential to elect”
as if it were statutory text, I fail to see how that phrase
dictates that a minority’s ability to compete must be single
handed in order to count under § 2. As explained already, a
crossover district serves the same interest in obtaining rep
resentation as a majority-minority district; the potential of
45% with a 6% crossover promises the same result as 51%
with no crossover, and there is nothing in the logic of § 2 to
allow a distinction between the two types of district.
In fact, the plurality’s distinction is artificial on its own
terms. In the past, when black voter registration and black
voter turnout were relatively low, even black voters with
55% of a district’s CVAP would have had to rely on crossover
voters to elect their candidate of choice. See Pildes 1527–
1528. But no one on this Court (and, so far as I am aware,
any other court addressing it) ever suggested that reliance
on crossover voting in such a district rendered minority suc
cess any less significant under § 2, or meant that the district
failed to satisfy the first Gingles factor. Nor would it be any
answer to say that black voters in such a district, assuming
unrealistic voter turnout, theoretically had the “potential” to
elect their candidate without crossover support; that would
be about as relevant as arguing in the abstract that a black
CVAP of 45% is potentially successful, on the assumption
that black voters could turn out en masse to elect the candi
date of their choice without reliance on crossovers if enough
majority voters stay home.
2
The plurality is also concerned that recognizing the “po
tential” of anything under 50% would entail an exponential
expansion of special minority districting; the plurality goes
so far as to suggest that recognizing crossover districts as
possible minority-opportunity districts would inherently “en

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38 BARTLETT v. STRICKLAND
Souter, J., dissenting
titl[e] minority groups to the maximum possible voting
strength.” Ante, at 15–16. But this conclusion again re
flects a confusion of the gatekeeping function of the Gingles
conditions with the ultimate test for relief under § 2. See
ante, at 14 (“African-Americans standing alone have no bet
ter or worse opportunity to elect a candidate than does any
other group of voters with the same relative voting strength”).
As already explained, supra, at 31, the mere fact that all
threshold Gingles conditions could be met and a district
could be drawn with a minority population sufficiently large
to elect the candidate of its choice does not require drawing
such a district. This case simply is about the first Gingles
condition, not about the number of minority-opportunity dis
tricts needed under § 2, and accepting Bartlett’s position
would in no way imply an obligation to maximize districts
with minority voter potential. Under any interpretation of
the first Gingles factor, the State must draw districts in a
way that provides minority voters with a fair number of dis
tricts in which they have an opportunity to elect candidates
of their choice; the only question here is which districts will
count toward that total.
3
The plurality’s fear of maximization finds a parallel in the
concern that treating crossover districts as minority
opportunity districts would “create serious tension” with the
third Gingles prerequisite of majority-bloc voting. Ante,
at 16. The plurality finds “[i]t . . . difficult to see how the
majority-bloc-voting requirement could be met in a district
where, by definition, white voters join in sufficient numbers
with minority voters to elect the minority’s preferred candi
date.” Ibid.
It is not difficult to see. If a minority population with
49% of the CVAP can elect the candidate of its choice with
crossover by 2% of white voters, the minority “by definition”
relies on white support to elect its preferred candidate. But
this fact alone would raise no doubt, as a matter of definition

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39 Cite as: 556 U. S. 1 (2009)
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or otherwise, that the majority-bloc-voting requirement
could be met, since as much as 98% of the majority may have
voted against the minority’s candidate of choice. As ex
plained above, supra, at 34, the third Gingles condition may
well impose an analytical floor to the minority population and
a ceiling on the degree of crossover allowed in a cross
over district; that is, the concept of majority-bloc voting re
quires that majority voters tend to stick together in a rela
tively high degree. The precise standard for determining
majority-bloc voting is not at issue in this case, however; to
refute the plurality’s 50% rule, one need only recognize that
racial cohesion of 98% would be bloc voting by any standard.3
4
The plurality argues that qualifying crossover districts as
minority-opportunity districts would be less administrable
than demanding 50%, forcing courts to engage with the vari
ous factual and predictive questions that would come up in
determining what percentage of majority voters would pro
vide the voting minority with a chance at electoral success.
Ante, at 17. But claims based on a State’s failure to draw
majority-minority districts raise the same issues of judicial
judgment; even when the 50% threshold is satisfied, a court
will still have to engage in factually messy enquiries about
3 This case is an entirely inappropriate vehicle for speculation about a
more exact definition of majority-bloc voting. See supra, at 34. The po
litical science literature has developed statistical methods for assessing
the extent of majority-bloc voting that are far more nuanced than the
plurality’s 50% rule. See, e. g., Pildes 1534–1535 (describing a “falloff
rate” that social scientists use to measure the comparative rate at which
whites vote for black Democratic candidates compared to white Demo
cratic candidates and noting that the falloff rate for congressional elections
during the 1990s in North Carolina was 9%). But this issue was never
briefed in this case and is not before us, the respondents having stipulated
to the existence of majority-bloc voting, App. to Pet. for Cert. 130a, and
there is no reason to attempt to accomplish in this case through the first
Gingles factor what would actually be a quantification of the third.

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40 BARTLETT v. STRICKLAND
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the “potential” such a district may afford, the degree of mi
nority cohesion and majority-bloc voting, and the existence
of vote dilution under a totality of the circumstances. See
supra, at 30–31, 33–34. The plurality’s rule, therefore, con
serves an uncertain amount of judicial resources, and only at
the expense of ignoring a class of § 2 claims that this Court
has no authority to strike from the statute’s coverage.
5
The plurality again misunderstands the nature of § 2 in
suggesting that its rule does not conflict with what the Court
said in Georgia v. Ashcroft, 539 U. S. 461, 480–482 (2003):
that crossover districts count as minority-opportunity dis
tricts for the purpose of assessing whether minorities have
the opportunity “to elect their preferred candidates of
choice” under § 5 of the VRA, 42 U. S. C. § 1973c(b) (2006 ed.).
While the plurality is, of course, correct that there are dif
ferences between the enquiries under §§ 2 and 5, ante, at
24, those differences do not save today’s decision from in
consistency with the prior pronouncement. A districting
plan violates § 5 if it diminishes the ability of minority voters
to “elect their preferred candidates of choice,” § 1973c(b),
as measured against the minority’s previous electoral oppor
tunity, Ashcroft, supra, at 477. A districting plan violates
§ 2 if it diminishes the ability of minority voters to “elect
representatives of their choice,” 42 U. S. C. § 1973(b) (2000
ed.), as measured under a totality of the circumstances
against a baseline of rough proportionality. It makes no
sense to say that a crossover district counts as a minority
opportunity district when comparing the past and the pres
ent under § 5, but not when comparing the present and the
possible under § 2.
6
Finally, the plurality tries to support its insistence on a
50% threshold by invoking the policy of constitutional avoid
ance, which calls for construing a statute so as to avoid a

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41 Cite as: 556 U. S. 1 (2009)
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possibly unconstitutional result. The plurality suggests
that allowing a lower threshold would “require crossover dis
tricts throughout the Nation,” ante, at 21, thereby implicat
ing the principle of Shaw v. Reno that districting with an
excessive reliance on race is unconstitutional (“excessive”
now being equated by the plurality with the frequency of
creating opportunity districts). But the plurality has it pre
cisely backwards. A State will inevitably draw some cross
over districts as the natural byproduct of districting based
on traditional factors. If these crossover districts count as
minority-opportunity districts, the State will be much closer
to meeting its § 2 obligation without any reference to race,
and fewer minority-opportunity districts will, therefore,
need to be created purposefully. But if, as a matter of law,
only majority-minority districts provide a minority seeking
equality with the opportunity to elect its preferred candi
dates, the State will have much further to go to create a
sufficient number of minority-opportunity districts, will be
required to bridge this gap by creating exclusively majority
minority districts, and will inevitably produce a districting
plan that reflects a greater focus on race. The plurality,
however, seems to believe that any reference to race in dis
tricting poses a constitutional concern, even a State’s deci
sion to reduce racial blocs in favor of crossover districts. A
judicial position with these consequences is not constitu
tional avoidance.
IV
More serious than the plurality opinion’s inconsistency
with prior cases construing § 2 is the perversity of the re
sults it portends. Consider the effect of the plurality’s rule
on North Carolina’s districting scheme. Black voters make
up approximately 20% of North Carolina’s VAP 4 and are dis
4 Compare Dept. of Commerce, Bureau of Census, 2000 Voting Age
Population and Voting-Age Citizens (PHC–T–31) (Table 1–1), online at
http://www.census.gov/population/www/cen2000/briefs/phc-t31/index.html
(as visited Mar. 5, 2009, and available in Clerk of Court’s case file) (total

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42 BARTLETT v. STRICKLAND
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tributed throughout 120 State House districts, App. to Pet.
for Cert. 58a. As noted before, black voters constitute more
than 50% of the VAP in 9 of these districts and over 39%
of the VAP in an additional 12. Supra, at 33. Under a
functional approach to § 2, black voters in North Carolina
have an opportunity to elect (and regularly do elect) the rep
resentative of their choice in as many as 21 House districts,
or 17.5% of North Carolina’s total districts. See App. 109–
110. North Carolina’s districting plan is therefore close to
providing black voters with proportionate electoral opportu
nity. According to the plurality, however, the remedy of a
crossover district cannot provide opportunity to minority
voters who lack it, and the requisite opportunity must there
fore be lacking for minority voters already living in districts
where they must rely on crossover. By the plurality’s reck
oning, then, black voters have an opportunity to elect repre
sentatives of their choice in, at most, nine North Carolina
House districts. See ibid. In the plurality’s view, North
Carolina must have a long way to go before it satisfies the
§ 2 requirement of equal electoral opportunity.5
VAP in North Carolina is 6,087,996), with id., Table 1–3 (black or African-
American VAP is 1,216,622).
5 Under the same logic, North Carolina could fracture and submerge in
majority-dominated districts the 12 districts in which black voters consti
tute between 35% and 49% of the voting population and routinely elect
the candidates of their choice without ever implicating § 2, and could do so
in districts not covered by § 5 without implicating the VRA at all. The
untenable implications of the plurality’s rule do not end there. The plu
rality declares that its holding “does not apply to cases in which there is
intentional discrimination against a racial minority.” Ante, at 20. But
the logic of the plurality’s position compels the absurd conclusion that the
invidious and intentional fracturing of crossover districts in order to harm
minority voters would not state a claim under § 2. After all, if the elimi
nation of a crossover district can never deprive minority voters in the
district of the opportunity “to elect representatives of their choice,” mi
norities in an invidiously eliminated district simply cannot show an injury
under § 2.

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43 Cite as: 556 U. S. 1 (2009)
Souter, J., dissenting
A State like North Carolina faced with the plurality’s opin
ion, whether it wants to comply with § 2 or simply to avoid
litigation, will, therefore, have no reason to create crossover
districts. Section 2 recognizes no need for such districts,
from which it follows that they can neither be required nor
be created to help the State meet its obligation of equal elec
toral opportunity under § 2. And if a legislature were in
duced to draw a crossover district by the plurality’s encour
agement to create them voluntarily, ante, at 24, it would open
itself to attack by the plurality based on the pointed sugges
tion that a policy favoring crossover districts runs counter
to Shaw. The plurality has thus boiled § 2 down to one op
tion: the best way to avoid suit under § 2, and the only way
to comply with § 2, is by drawing district lines in a way that
packs minority voters into majority-minority districts, prob
ably eradicating crossover districts in the process.
Perhaps the plurality recognizes this aberrant implication,
for it eventually attempts to disavow it. It asserts that Ҥ 2
allows States to choose their own method of complying with
the Voting Rights Act, and we have said that may include
drawing crossover districts. . . . [But] § 2 does not mandate
creating or preserving crossover districts.” Ante, at 23.
See also ante, at 24 (crossover districts “can be evidence . . .
of equal political opportunity . . . ”). But this is judicial fiat,
not legal reasoning; the plurality does not even attempt
to explain how a crossover district can be a minority
opportunity district when assessing the compliance of a dis
tricting plan with § 2, but cannot be one when sought as a
remedy to a § 2 violation. The plurality cannot have it both
ways. If voluntarily drawing a crossover district brings a
State into compliance with § 2, then requiring creation of a
crossover district must be a way to remedy a violation of § 2,
and eliminating a crossover district must in some cases take
a State out of compliance with the statute. And when the
elimination of a crossover district does cause a violation of

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44 BARTLETT v. STRICKLAND
Breyer, J., dissenting
§ 2, I cannot fathom why a voter in that district should not
be able to bring a claim to remedy it.
In short, to the extent the plurality’s holding is taken to
control future results, the plurality has eliminated the pro
tection of § 2 for the districts that best vindicate the goals of
the statute, and has done all it can to force the States to
perpetuate racially concentrated districts, the quintessential
manifestations of race consciousness in American politics.
I respectfully dissent.
Justice Ginsburg, dissenting.
I join Justice Souter’s powerfully persuasive dissenting
opinion, and would make concrete what is implicit in his ex
position. The plurality’s interpretation of § 2 of the Voting
Rights Act of 1965 is difficult to fathom and severely under
mines the statute’s estimable aim. Today’s decision returns
the ball to Congress’ court. The Legislature has just cause
to clarify beyond debate the appropriate reading of § 2.
Justice Breyer, dissenting.
I join Justice Souter’s opinion in full. I write sepa
rately in light of the plurality’s claim that a bright-line 50%
rule (used as a Thornburg v. Gingles, 478 U. S. 30 (1986),
gateway) serves administrative objectives. In the plural
ity’s view, that rule amounts to a relatively simple adminis
trative device that will help separate at the outset those
cases that are more likely meritorious from those that are
not. Even were that objective as critically important as the
plurality believes, however, it is not difficult to find other
numerical gateway rules that would work better.
Assume that a basic purpose of a gateway number is to
separate (1) districts where a minority group can “elect rep
resentatives of their choice,” from (2) districts where the mi
nority, because of the need to obtain majority crossover
votes, can only “elect representatives” that are consensus
candidates. 42 U. S. C. § 1973(b) (2000 ed.); League of

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45 Cite as: 556 U. S. 1 (2009)
Breyer, J., dissenting
United Latin American Citizens v. Perry, 548 U. S. 399, 445
(2006) (plurality opinion). At first blush, one might think
that a 50% rule will work in this respect. After all, if a 50%
minority population votes as a bloc, can it not always elect
the candidate of its choice? And if a minority population
constitutes less than 50% of a district, is not any candidate
elected from that district always a consensus choice of minor
ity and majority voters? The realities of voting behavior,
however, make clear that the answer to both these questions
is “no.” See, e. g., Brief for Nathaniel Persily et al. as Amici
Curiae 5–6 (“Fifty percent is seen as a magic number by
some because under conditions of complete racial polariza
tion and equal rates of voting eligibility, registration, and
turnout, the minority community will be able to elect its can
didate of choice. In practice, such extreme conditions are
never present. . . . [S]ome districts must be more than 50%
minority, while others can be less than 50% minority, in order
for the minority community to have an equal opportunity to
elect its candidate of choice” (emphasis added)); see also ante,
at 32–33 (Souter, J., dissenting).
No voting group is 100% cohesive. Except in districts
with overwhelming minority populations, some crossover
votes are often necessary. The question is how likely it is
that the need for crossover votes will force a minority to
reject its “preferred choice” in favor of a “consensus candi
date.” A 50% number does not even try to answer that
question. To the contrary, it includes, say, 51% minority dis
tricts, where imperfect cohesion may, in context, prevent
election of the “minority-preferred” candidate, while it ex
cludes, say, 45% districts where a smaller but more cohesive
minority can, with the help of a small and reliable majority
crossover vote, elect its preferred candidate.
Why not use a numerical gateway rule that looks more
directly at the relevant question: Is the minority bloc large
enough, is it cohesive enough, is the necessary majority
crossover vote small enough, so that the minority (tending

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46 BARTLETT v. STRICKLAND
Breyer, J., dissenting
to vote cohesively) can likely vote its preferred candidate
(rather than a consensus candidate) into office? See ante, at
33 (Souter, J., dissenting) (“[E]mpirical studies confir[m]
that . . . minority groups” constituting less than 50% of the
voting population “regularly elect their preferred candidates
with the help of modest crossover by members of the major
ity”); see also Pildes, Is Voting-Rights Law Now at War With
Itself? Social Science and Voting Rights in the 2000s, 80 N. C.
L. Rev. 1517, 1529–1535 (2002) (reviewing studies showing
small but reliable crossover voting by whites in districts
where minority voters have demonstrated the ability to elect
their preferred candidates without constituting 50% of the
population in that district). We can likely find a reasonably
administrable mathematical formula more directly tied to the
factors in question.
To take a possible example: Suppose we pick a numerical
ratio that requires the minority voting age population to be
twice as large as the percentage of majority crossover votes
needed to elect the minority’s preferred candidate. We
would calculate the latter (the percentage of majority cross
over votes the minority voters need) to take account of both
the percentage of minority voting age population in the dis
trict and the cohesiveness with which they vote. Thus, if
minority voters account for 45% of the voters in a district
and 89% of those voters tend to vote cohesively as a group,
then the minority needs a crossover vote of about 20% of
the majority voters to elect its preferred candidate. (Such
a district with 100 voters would have 45 minority voters and
55 majority voters; 40 minority voters would vote for the
minority group’s preferred candidate at election time; the mi
nority voters would need 11 more votes to elect their pre
ferred candidate; and 11 is about 20% of the majority’s 55.)
The larger the minority population, the greater its cohesive
ness, and thus the smaller the crossover vote needed to as
sure success, the greater the likelihood that the minority can

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47 Cite as: 556 U. S. 1 (2009)
Breyer, J., dissenting
elect its preferred candidate and the smaller the likelihood
that the cohesive minority, in order to find the needed major
ity crossover vote, must support a consensus, rather than its
preferred, candidate.
In reflecting the reality that minority voters can elect the
candidate of their choice when they constitute less than 50%
of a district by relying on a small majority crossover vote,
this approach is in no way contradictory to, or even in tension
with, the third Gingles requirement. Since Gingles itself,
we have acknowledged that the requirement of majority-bloc
voting can be satisfied even when some small number of ma
jority voters cross over to support a minority-preferred can
didate. See 478 U. S., at 59 (finding majority-bloc voting
where the majority group supported African-American can
didates in the general election at a rate of between 26% and
49%, with an average support of one-third). Given the dif
ficulty of obtaining totally accurate statistics about cohesion,
or even voting age population, the district courts should ad
minister the numerical ratio flexibly, opening (or closing) the
Gingles gate (in light of the probable merits of a case) where
only small variances are at issue (e. g., where the minority
group is 39% instead of 40% of a district). But the same is
true with a 50% number (e. g., where the minority group is
49% instead of 50% of a district). See, e. g., Brief for United
States as Amicus Curiae 15.
I do not claim that the 2-to-1 ratio is a perfect rule; I claim
only that it is better than the plurality’s 50% rule. After
all, unlike 50%, a 2-to-1 ratio (of voting age minority popula
tion to necessary nonminority crossover votes) focuses di
rectly upon the problem at hand, better reflects voting reali
ties, and consequently far better separates at the gateway
likely sheep from likely goats. See Gingles, supra, at 45
(The §2 inquiry depends on a “ ‘functional’ view of the politi
cal process” and “ ‘a searching practical evaluation of the
past and present reality’ ” (quoting S. Rep. No. 97–417, p. 30,
and n. 120 (1982))); Gingles, supra, at 94–95 (O’Connor, J.,

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48 BARTLETT v. STRICKLAND
Breyer, J., dissenting
concurring in judgment) (“[T]here is no indication that Con
gress intended to mandate a single, universally applicable
standard for measuring undiluted minority voting strength,
regardless of local conditions . . . ”). In most cases, the 50%
rule and the 2-to-1 rule would have roughly similar effects.
Most districts where the minority voting age population is
greater than 50% will almost always satisfy the 2-to-1 rule;
and most districts where the minority population is below
40% will almost never satisfy the 2-to-1 rule. But in dis
tricts with minority voting age populations that range from
40% to 50%, the divergent approaches of the two standards
can make a critical difference—as well they should.
In a word, Justice Souter well explains why the majori
ty’s test is ill suited to the statute’s objectives. I add that
the test the majority adopts is ill suited to its own adminis
trative ends. Better gateway tests, if needed, can be found.
With respect, I dissent.