LEAGUE OF UNITED LATIN AMERICAN CITIZENS et al. v. PERRY, GOVERNOR OF TEXAS, et al.

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LEAGUE OF UNITED LATIN AMERICAN CITIZENS
et al. v. PERRY, GOVERNOR OF TEXAS, et al.
appeal from the united states district court for the
eastern district of texas
No. 05–204. Argued March 1, 2006—Decided June 28, 2006*
The 1990 census resulted in a 3-seat increase over the 27 seats previously
allotted the Texas congressional delegation. Although the Democratic
Party then controlled 19 of those 27 seats, as well as both state legisla
tive houses and the governorship, change was in the air: The Republican
Party had received 47% of the 1990 statewide vote, while the Democrats
had received only 51%. Faced with a possible Republican ascent to
majority status, the legislature drew a congressional redistricting plan
that favored Democratic candidates. The Republicans challenged the
1991 plan as an unconstitutional partisan gerrymander, but to no avail.
The 2000 census authorized two additional seats for the Texas delega
tion. The Republicans then controlled the governorship and the State
Senate, but did not yet control the State House of Representatives. So
constituted, the legislature was unable to pass a redistricting scheme,
resulting in litigation and the necessity of a court-ordered plan to
comply with the U. S. Constitution’s one-person, one-vote requirement.
Conscious that the primary responsibility for drawing congressional dis
tricts lies with the political branches of government, and hesitant to
undo the work of one political party for the benefit of another, the
three-judge Federal District Court sought to apply only “neutral” redis
tricting standards when drawing Plan 1151C, including placing the two
new seats in high-growth areas, following county and voting precinct
lines, and avoiding the pairing of incumbents. Under Plan 1151C, the
2002 congressional elections resulted in a 17-to-15 Democratic majority
in the Texas delegation, compared to a 59% to 40% Republican majority
in votes for statewide office in 2000, thus leaving the 1991 Democratic
gerrymander largely in place.
In 2003, however, Texas Republicans gained control of both houses of
the legislature and set out to increase Republican representation in the
congressional delegation. After a protracted partisan struggle, the leg
*Together with No. 05–254, Travis County, Texas, et al. v. Perry, Gover
nor of Texas, et al., No. 05–276, Jackson et al. v. Perry, Governor of Texas,
et al., and No. 05–439, GI Forum of Texas et al. v. Perry, Governor of
Texas, et al., also on appeal from the same court.

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islature enacted a new congressional districting map, Plan 1374C. In
the 2004 congressional elections, Republicans won 21 seats to the Demo
crats’ 11, while also obtaining 58% of the vote in statewide races against
the Democrats’ 41%. Soon after Plan 1374C was enacted, appellants
challenged it in court, alleging a host of constitutional and statutory
violations. In 2004 the District Court entered judgment for appellees,
but this Court vacated the decision and remanded for consideration in
light of Vieth v. Jubelirer, 541 U. S. 267. On remand, the District
Court, believing the scope of its mandate was limited to questions of
political gerrymandering, again rejected appellants’ claims.
Held: The judgment is affirmed in part, reversed in part, and vacated in
part, and the cases are remanded.
399 F. Supp. 2d 756, affirmed in part, reversed in part, vacated in part,
and remanded.
Justice Kennedy delivered the opinion of the Court with respect to
Parts II–A and III, concluding:
1. This Court held, in Davis v. Bandemer, 478 U. S. 109, 118–127, that
an equal protection challenge to a political gerrymander presents a justi
ciable case or controversy, although it could not agree on what substan
tive standard to apply, compare id., at 127–137, with id., at 161–162.
That disagreement persists. The Vieth plurality would have held such
challenges nonjusticiable political questions, but a majority declined to
do so, see 541 U. S., at 306, 317, 343, 355. Justiciability is not revisited
here. At issue is whether appellants offer a manageable, reliable meas
ure of fairness for determining whether a partisan gerrymander is un
constitutional. Pp. 413–414.
2. Texas’ redrawing of District 23’s lines amounts to vote dilution
violative of § 2 of the Voting Rights Act of 1965. Pp. 423–443.
(a) Plan 1374C’s changes to District 23 served the dual goals of
increasing Republican seats and protecting the incumbent Republican
against an increasingly powerful Latino population that threatened to
oust him, with the additional political nuance that he would be reelected
in a district that had a Latino majority as to voting-age population,
though not a Latino majority as to citizen voting-age population or an
effective Latino voting majority. The District 23 changes required ad
justments elsewhere, so the State created new District 25 to avoid ret
rogression under § 5 of the Act. Pp. 423–425.
(b) A State violates § 2 “if, based on the totality of circumstances,
it is shown that the political processes leading to nomination or elec
tion . . . are not [as] equally open to . . . members of [a racial group
as they are to] other members of the electorate.” 42 U. S. C. § 1973(b).
Thornburg v. Gingles, 478 U. S. 30, 50–51, identified three threshold con

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ditions for establishing a § 2 violation: (1) the racial group must be “suf
ficiently large and geographically compact to constitute a majority in a
single-member district”; (2) the group must be “politically cohesive”;
and (3) the white majority must “vot[e] sufficiently as a bloc to enable
it . . . usually to defeat the minority’s preferred candidate.” The leg
islative history identifies factors that courts can use, once all three
threshold requirements are met, in interpreting § 2’s “totality of cir
cumstances” standard, including the State’s history of voting-related
discrimination, the extent to which voting is racially polarized, and the
extent to which the State has used voting practices or procedures that
tend to enhance the opportunity for discrimination against the minority
group. See id., at 44–45. Another relevant consideration is whether
the number of districts in which the minority group forms an effective
majority is roughly proportional to its share of the population in the
relevant area. Johnson v. De Grandy, 512 U. S. 997, 1000. The dis
trict court’s determination whether the § 2 requirements are satisfied
must be upheld unless clearly erroneous. See Gingles, supra, at 78–79.
Where “the ultimate finding of dilution” is based on “a misreading of
the governing law,” however, there is reversible error. De Grandy,
supra, at 1022. Pp. 425–427.
(c) Appellants have satisfied all three Gingles requirements as to
District 23, and the creation of new District 25 does not remedy the
problem.
The second and third Gingles factors—Latino cohesion, majority bloc
voting—are present, given the District Court’s finding of racially polar
ized voting in District 23 and throughout the State. As to the first
Gingles precondition—that the minority group be large and compact
enough to constitute a majority in a single-member district, 478 U. S.,
at 50—appellants have established that Latinos could have had an op
portunity district in District 23 had its lines not been altered and that
they do not have one now. They constituted a majority of the citizen
voting-age population in District 23 under Plan 1151C. The District
Court suggested incorrectly that the district was not a Latino opportu
nity district in 2002 simply because the incumbent prevailed. The fact
that a group does not win elections does not resolve the vote dilution
issue. De Grandy, 512 U. S., at 1014, n. 11. In old District 23 the in
crease in Latino voter registration and overall population, the concomi
tant rise in Latino voting power in each successive election, the near
victory of the Latino candidate of choice in 2002, and the resulting
threat to the incumbent’s continued election were the very reasons the
State redrew the district lines. Since the redistricting prevented the
immediate success of the emergent Latino majority in District 23, there
was a denial of opportunity in the real sense of that term. Plan 1374C’s

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version of District 23, by contrast, is unquestionably not a Latino oppor
tunity district. That Latinos are now a bare majority of the district’s
voting-age population is not dispositive, since the relevant numbers
must account for citizenship in order to determine the group’s opportu
nity to elect candidates, and Latinos do not now have a citizen voting
age majority in the district.
The State’s argument that it met its § 2 obligations by creating new
District 25 as an offsetting opportunity district is rejected. In a dis
trict line-drawing challenge, “the first Gingles condition requires the
possibility of creating more than the existing number of reasonably com
pact districts with a sufficiently large minority population to elect candi
dates of its choice.” Id., at 1008. The District Court’s finding that the
current plan contains six Latino opportunity districts and that seven
reasonably compact districts, as proposed by appellant GI Forum, could
not be drawn was not clearly erroneous. However, the court failed to
perform the required compactness inquiry between the number of La
tino opportunity districts under the challenger’s proposal of reinstating
Plan 1151C and the “existing number of reasonably compact districts.”
Ibid. Section 2 does not forbid the creation of a noncompact majority
minority district, Bush v. Vera, 517 U. S. 952, 999, but such a district
cannot remedy a violation elsewhere in the State, see Shaw v. Hunt,
517 U. S. 899, 916. The lower court recognized there was a 300-mile
gap between the two Latino communities in District 25, and a similarly
large gap between the needs and interests of the two groups. The
court’s conclusion that the relative smoothness of the district lines made
the district compact, despite this combining of discrete communities of
interest, is inapposite because the court analyzed the issue only in the
equal protection context, where compactness focuses on the contours of
district lines to determine whether race was the predominant factor in
drawing those lines. See Miller v. Johnson, 515 U. S. 900, 916–917.
Under § 2, by contrast, the injury is vote dilution, so the compactness
inquiry considers “the compactness of the minority population, not . . .
the compactness of the contested district.” Vera, 517 U. S., at 997. A
district that “reaches out to grab small and apparently isolated minority
communities” is not reasonably compact. Id., at 979. The lower
court’s findings regarding the different characteristics, needs, and inter
ests of the two widely scattered Latino communities in District 23 are
well supported and uncontested. The enormous geographical distances
separating the two communities, coupled with the disparate needs and
interests of these populations—not either factor alone—renders District
25 noncompact for § 2 purposes. Therefore, Plan 1374C contains only
five reasonably compact Latino opportunity districts, one fewer than
Plan 1151C. Pp. 427–435.

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(d) The totality of the circumstances demonstrates a § 2 violation.
The relevant proportionality inquiry, see De Grandy, 512 U. S., at 1000,
compares the percentage of total districts that are Latino opportunity
districts with the Latino share of the citizen voting-age population.
The State’s contention that proportionality should be decided on a re
gional basis is rejected in favor of appellants’ assertion that their claim
requires a statewide analysis because they have alleged statewide vote
dilution based on a statewide plan. Looking statewide, there are 32
congressional districts. The five reasonably compact Latino opportu
nity districts amount to roughly 16% of the total, while Latinos make
up 22% of Texas’ citizen voting-age population. Latinos are, therefore,
two districts shy of proportional representation. Even deeming this
disproportionality insubstantial would not overcome the other evidence
of vote dilution for Latinos in District 23. The changes there under
mined the progress of a racial group that has been subject to significant
voting-related discrimination and that was becoming increasingly politi
cally active and cohesive. Cf., e. g., id., at 1014. Against this back
ground, the Latinos’ diminishing electoral support for the incumbent
indicates their belief he was unresponsive to their particularized needs.
In essence, the State took away their opportunity because they were
about to exercise it. Even accepting the District Court’s finding that
the State’s action was taken primarily for political, not racial, reasons,
the redrawing of District 23’s lines was damaging to its Latino voters.
The State not only made fruitless the Latinos’ mobilization efforts but
also acted against those Latinos who were becoming most politically
active. Although incumbency protection can be a legitimate factor in
districting, see Karcher v. Daggett, 462 U. S. 725, 740, not all of its forms
are in the interests of the constituents. If, as here, such protection
means excluding some voters from the district simply because they are
likely to vote against the officeholder, the change is to benefit the office
holder, not the voters. This policy, whatever its validity in the political
realm, cannot justify the effect on Latino voters. See Gingles, supra,
at 45. Pp. 436–442.
(e) Because Plan 1374C violates § 2 in its redrawing of District 23,
appellants’ First Amendment and equal protection claims with respect
to that district need not be addressed. Their equal protection claim as
to the drawing of District 25 need not be confronted because that dis
trict will have to be redrawn to remedy the District 23 violation.
Pp. 442–443.
Justice Kennedy concluded in Part II that because appellants have
established no legally impermissible use of political classifications, they
state no claim on which relief may be granted as to their contention that
Texas’ statewide redistricting is an unconstitutional political gerry

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mander. Justice Souter and Justice Ginsburg joined Part II–D.
Pp. 414–423.
(a) Article I of the Constitution, §§ 2 and 4, gives “the States primary
responsibility for apportionment of their . . . congressional . . . districts,”
Growe v. Emison, 507 U. S. 25, 34, but § 4 also permits Congress to set
further requirements. Neither the Constitution nor Congress has
stated any explicit prohibition of mid-decade redistricting to change dis
tricts drawn earlier in conformance with a decennial census. Although
the legislative branch plays the primary role in congressional redistrict
ing, courts have an important role when a districting plan violates the
Constitution. See, e. g., Wesberry v. Sanders, 376 U. S. 1. That the
federal courts sometimes must order legislative redistricting, however,
does not shift the primary responsibility away from legislative bodies,
see, e. g., Wise v. Lipscomb, 437 U. S. 535, 540, who are free to replace
court-mandated remedial plans by enacting redistricting plans of their
own, see, e. g., Upham v. Seamon, 456 U. S. 37, 44. Judicial respect for
legislative plans, however, cannot justify legislative reliance on im
proper criteria for districting determinations. Pp. 414–416.
(b) Appellants claim unpersuasively that a decision to effect mid
decennial redistricting, when solely motivated by partisan objectives,
presumptively violates equal protection and the First Amendment be
cause it serves no legitimate public purpose and burdens one group be
cause of its political opinions and affiliation. For a number of reasons,
that test is unconvincing. There is some merit to the State’s assertion
that partisan gain was not the sole motivation for replacing Plan 1151C:
The contours of some contested district lines seem to have been drawn
based on more mundane and local interests, and a number of line
drawing requests by Democratic state legislators were honored. More
over, a successful test for identifying unconstitutional partisan gerry
mandering must do what appellants’ sole-motivation theory explicitly
disavows: show a burden, as measured by a reliable standard, on the
complainants’ representational rights. See Vieth, 541 U. S., at 292–295,
307–308. Appellants’ sole-intent standard is no more compelling when
it is linked to the circumstance that Plan 1374C is mid-decennial legisla
tion. The Constitution’s text and structure and this Court’s cases indi
cate there is nothing inherently suspect about a legislature’s decision to
replace mid-decade a court-ordered plan with one of its own. Even if
there were, the fact of mid-decade redistricting alone is no sure indica
tion of unlawful political gerrymanders. Appellants’ test would leave
untouched the 1991 Texas redistricting, which entrenched a party on
the verge of minority status, while striking down the 2003 redistricting
plan, which resulted in the majority Republican Party capturing a larger
share of the seats. A test that treats these two similarly effective

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power plays in such different ways does not have the reliability appel
lants ascribe to it. Pp. 416–420.
(c) Appellants’ political gerrymandering theory that mid-decade re
districting for exclusively partisan purposes violates the one-person,
one-vote requirement is rejected. Although conceding that States op
erate under the legal fiction that their plans are constitutionally appor
tioned throughout a decade, see, e. g., Georgia v. Ashcroft, 539 U. S. 461,
488, n. 2, appellants contend that this fiction should not provide a safe
harbor for a legislature that enacts a voluntary, mid-decade plan over
riding a legal court-drawn plan. This argument mirrors appellants’ at
tack on mid-decennial redistricting solely motivated by partisan consid
erations and is unsatisfactory for the same reasons. Their further
contention that the legislature intentionally sought to manipulate popu
lation variances when it enacted Plan 1374C is unconvincing because
there is no District Court finding to that effect, and they present no
specific evidence to support this serious allegation of bad faith. Be
cause they have not demonstrated that the legislature’s decision to enact
Plan 1374C constitutes a violation of the equal-population requirement,
their subsidiary reliance on Larios v. Cox, 300 F. Supp. 2d 1320, sum
marily aff ’d, 542 U. S. 947, is unavailing. Pp. 420–423.
Justice Kennedy, joined by The Chief Justice and Justice
Alito, concluded in Part IV that the Dallas area redistricting does not
violate § 2 of the Voting Rights Act. Appellants allege that the Dallas
changes dilute African-American voting strength because an African-
American minority effectively controlled District 24 under Plan 1151C.
However, before Plan 1374C, District 24 had elected an Anglo Demo
crat to Congress in every election since 1978. Since then, moreover,
the incumbent has had no opposition in any of his primary elections,
and African-Americans have consistently voted for him. African-
Americans were the second-largest racial group in the district after An
glos, but had only 25.7% of the citizen voting-age population. Even
assuming that the first Gingles prong can accommodate appellants’ as
sertion that a § 2 claim may be stated for a racial group that makes up
less than 50% of the population, see, e. g., De Grandy, supra, at 1009,
they must show they constitute “a sufficiently large minority to elect
their candidate of choice with the assistance of cross-over votes,” Voino
vich v. Quilter, 507 U. S. 146, 158. The District Court committed no
clear error in rejecting questionable evidence that African-Americans
have the ability to elect their candidate of choice in favor of other evi
dence that an African-American candidate of choice would not prevail.
See Anderson v. Bessemer City, 470 U. S. 564, 574. That African-
Americans had influence in the district does not suffice to state a § 2
claim. If it did, it would unnecessarily infuse race into virtually every
redistricting, raising serious constitutional questions. See Georgia v.

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Ashcroft, 539 U. S. 461, 491. Id., at 480, 482, distinguished. Appellants
do not raise a district-specific political gerrymandering claim against
District 24. Pp. 443–447.
The Chief Justice, joined by Justice Alito, agreed that appellants
have not provided a reliable standard for identifying unconstitutional
political gerrymanders, but noted that the question whether any such
standard exists—i. e., whether a challenge to such a gerrymander pre
sents a justiciable case or controversy—has not been argued in these
cases. The Chief Justice and Justice Alito therefore take no posi
tion on that question, which has divided the Court, see Vieth v. Jube
lirer, 541 U. S. 267, and join the plurality’s Part II disposition without
specifying whether appellants have failed to state a claim on which
relief can be granted or failed to present a justiciable controversy.
Pp. 492–493.
Justice Scalia, joined by Justice Thomas, concluded that appel
lants’ claims of unconstitutional political gerrymandering do not present
a justiciable case or controversy, see Vieth v. Jubelirer, 541 U. S. 267,
271–306 (plurality opinion), and that their vote-dilution claims premised
on § 2 of the Voting Rights Act of 1965 lack merit for the reasons set
forth in Justice Thomas’s opinion concurring in the judgment in
Holder v. Hall, 512 U. S. 874, 891–946. Reviewing appellants’ race
based equal protection claims, Justice Scalia, joined by The Chief
Justice, Justice Thomas, and Justice Alito, concluded that the Dis
trict Court did not commit clear error in rejecting appellant GI Forum’s
assertion that the removal of Latino residents from District 23 consti
tuted intentional vote dilution. Justice Scalia, joined by The Chief
Justice, Justice Thomas, and Justice Alito, subjected the inten
tional creation of District 25 as a majority-minority district to strict
scrutiny and held that standard satisfied because appellants conceded
that the creation of this district was reasonably necessary to comply
with § 5 of the Voting Rights Act of 1965, which is a compelling state
interest, and did not argue that Texas did more than that provision
required it to do. Pp. 512–520.
Kennedy, J., announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts II–A and III, in which Ste
vens, Souter, Ginsburg, and Breyer, JJ., joined, an opinion with re
spect to Parts I and IV, in which Roberts, C. J., and Alito, J., joined, an
opinion with respect to Parts II–B and II–C, and an opinion with respect
to Part II–D, in which Souter and Ginsburg, JJ., joined. Stevens, J.,
filed an opinion concurring in part and dissenting in part, in which
Breyer, J., joined as to Parts I and II, post, p. 447. Souter, J., filed an
opinion concurring in part and dissenting in part, in which Ginsburg, J.,
joined, post, p. 483. Breyer, J., filed an opinion concurring in part

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and dissenting in part, post, p. 491. Roberts, C. J., filed an opinion con
curring in part, concurring in the judgment in part, and dissenting in
part, in which Alito, J., joined, post, p. 492. Scalia, J., filed an opinion
concurring in the judgment in part and dissenting in part, in which
Thomas, J., joined, and in which Roberts, C. J., and Alito, J., joined as
to Part III, post, p. 511.
Paul M. Smi th arg ued the cause for appel lants i n
No. 05–276. With him on the briefs for appellants were Sam
Hirsch and J. Gerald Hebert.
N in a Pe ra l es arg ued the cause for appel lants i n
No. 05–439. With her on the briefs was David Herrera
Urias.
R. Ted Cruz, Solicitor General of Texas, argued the cause
for the state appellees in all cases. With him on the brief
were Greg Abbott, Attorney General, Barry R. McBee, First
Assistant Attorney General, Edward D. Burbach, Deputy
Attorney General, and Don Cruse, Joel L. Thollander, and
Adam W. Aston, Assistant Solicitors General.
Deputy Solicitor General Garre argued the cause for the
United States as amicus curiae urging affirmance in support
of the state appellees. With him on the brief were Solicitor
General Clement, Assistant Attorney General Kim, James
A. Feldman, David K. Flynn, and Lisa J. Stark.
Rolando L. Rios, George Korbel, Jose Garza, and Judith
A. Sanders-Castro filed briefs for the League of United Latin
American Citizens et al., appellants in No. 05–204. Renea
Hicks filed briefs for Travis County, Texas, et al., appellants
in No. 05–254.
Michael A. Carvin and Louis K. Fisher filed a brief in all
cases for appellees Tina Benkiser et al. Robert M. Long
filed a brief in all cases for appellee Charles Soechting, in
support of appellants. John S. Ament III and Richard
Gladden filed briefs for Frenchie Henderson, appellee in sup
port of appellant Travis County, Texas, et al. in No. 05–254.
Gary L. Bledsoe, David T. Goldberg, Sean H. Donahue, and
Dennis Courtland Hayes filed briefs for the Texas State-
Area Conference of the National Association for the Ad

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vancement of Colored People in support of appellants in
No. 05–276.†
Justice Kennedy announced the judgment of the Court
and delivered the opinion of the Court with respect to Parts
II–A and III, an opinion with respect to Parts I and IV, in
†Briefs of amici curiae urging reversal in all cases were filed for the
Brennan Center for Justice by Deborah Goldberg and Michael Waldman;
for the Center for American Progress by Walter Dellinger, Jonathan D.
Hacker, Matthew M. Shors, and Jeffrey M. Wice; for the Reform Institute
et al. by Daniel R. Ortiz; for University Professors et al. by Lucas A.
Powe, Jr.; and for Samuel Issacharoff et al. by Richard H. Pildes, pro se,
and Mr. Issacharoff, pro se.
David W. Ogden, Jonathan E. Nuechterlein, Leonard M. Shambon, and
Jonathan H. Siegelbaum filed a brief of amici curiae for the League of
Women Voters of the United States et al. urging reversal in Nos. 05–204,
05–254, and 05–276.
Harold D. Hammett filed a brief for the Fort Worth-Tarrant County
Branch NAACP as amicus curiae urging reversal in No. 05–276.
Briefs of amici curiae urging affirmance in all cases were filed for the
State of Utah et al. by Mark Shurtleff, Attorney General of Utah, Gene
C. Schaerr, Steffen N. Johnson, James R. Thompson, George J. Chanos,
Attorney General of Nevada, and Jim Petro, Attorney General of Ohio;
for the American Legislative Exchange Council et al. by Marguerite Mary
Leoni; for the Republican National Committee by Thomas J. Josefiak; for
Senator Robert C. Jubelirer by John P. Krill, Jr., and Linda J. Shorey; for
the Speaker of the Georgia House of Representatives Glenn Richardson
et al. by Anne W. Lewis and Frank B. Strickland; and for Ron Wilson by
S. Shawn Stephens and Mr. Wilson, pro se.
Maureen E. Mahoney filed a brief for Congressman Henry Bonilla as
amicus curiae urging affirmance in No. 05–439.
Briefs of amici curiae were filed in all cases for the NAACP Legal
Defense and Educational Fund, Inc., by Theodore M. Shaw, Jacqueline A.
Berrien, Norman J. Chachkin, and Debo P. Adegbile; for Edward Blum
et al. by Frank M. Reilly and Marc A. Levin; for Alan Heslop et al. by E.
Marshall Braden, Robert M. Doherty, and Clark H. Bensen; and for Gary
King et al. by Justin A. Nelson and H. Lee Godfrey.
Briefs of amici curiae were filed in No. 05–276 for the North Carolina
State Conference of the National Association for the Advancement of Col
ored People by Anita S. Earls, Julius L. Chambers, and John Charles
Boger; and for Neil H. Cogan by Mr. Cogan, pro se.

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Opinion of Kennedy, J.
which The Chief Justice and Justice Alito join, an opin
ion with respect to Parts II–B and II–C, and an opinion with
respect to Part II–D, in which Justice Souter and Justice
Ginsburg join.
These four consolidated cases are appeals from a judgment
entered by the United States District Court for the Eastern
District of Texas. Convened as a three-judge court under
28 U. S. C. § 2284, the court heard appellants’ constitutional
and statutory challenges to a 2003 enactment of the Texas
State Legislature that drew new district lines for the 32
seats Texas holds in the United States House of Representa
tives. (Though appellants do not join each other as to all
claims, for the sake of convenience we refer to appellants
collectively.) In 2004 the court entered judgment for appel
lees and issued detailed findings of fact and conclusions of
law. Session v. Perry, 298 F. Supp. 2d 451 (per curiam).
This Court vacated that decision and remanded for consider
ation in light of Vieth v. Jubelirer, 541 U. S. 267 (2004). 543
U. S. 941 (2004). The District Court reexamined appellants’
political gerrymandering claims and, in a second careful opin
ion, again held for the defendants. Henderson v. Perry, 399
F. Supp. 2d 756 (2005). These appeals followed, and we
noted probable jurisdiction. 546 U. S. 1074 (2005).
Appellants contend the new plan is an unconstitutional
partisan gerrymander and that the redistricting statewide
violates § 2 of the Voting Rights Act of 1965, 79 Stat. 437, as
amended, 42 U. S. C. § 1973. Appellants also contend that
the use of race and politics in drawing lines of specific dis
tricts violates the First Amendment and the Equal Protec
tion Clause of the Fourteenth Amendment. The three
judge panel, consisting of Circuit Judge Higginbotham and
District Judges Ward and Rosenthal, brought considerable
experience and expertise to the instant action, based on their
knowledge of the State’s people, history, and geography.
Judges Higginbotham and Ward, moreover, had served on
the three-judge court that drew the plan the Texas Legisla

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ture replaced in 2003, so they were intimately familiar with
the history and intricacies of the cases.
We affirm the District Court’s dispositions on the state
wide political gerrymandering claims and the Voting Rights
Act claim against District 24. We reverse and remand on
the Voting Rights Act claim with respect to District 23. Be
cause we do not reach appellants’ race-based equal pro
tection claim or the political gerrymandering claim as to
District 23, we vacate the judgment of the District Court on
these claims.
I
To set out a proper framework for the cases, we first re
count the history of the litigation and recent districting in
Texas. An appropriate starting point is not the reappor
tionment in 2000 but the one from the census in 1990.
The 1990 census resulted in a 30-seat congressional delega
tion for Texas, an increase of 3 seats over the 27 representa
tives allotted to the State in the decade before. See Bush
v. Vera, 517 U. S. 952, 956–957 (1996). In 1991 the Texas
Legislature drew new district lines. At the time, the Demo
cratic Party controlled both houses in the state legislature,
the governorship, and 19 of the State’s 27 seats in Congress.
Yet change appeared to be on the horizon. In the previous
30 years the Democratic Party’s post-Reconstruction domi
nance over the Republican Party had eroded, and by 1990
the Republicans received 47% of the statewide vote, while
the Democrats received 51%. Henderson, supra, at 763;
Brief for Appellee Perry et al. in No. 05–204 etc., p. 2 (herein
after Brief for State Appellees).
Faced with a Republican opposition that could be moving
toward majority status, the state legislature drew a congres
sional redistricting plan designed to favor Democratic candi
dates. Using then-emerging computer technology to draw
district lines with artful precision, the legislature enacted a
plan later described as the “shrewdest gerrymander of the
1990s.” M. Barone, R. Cohen, & C. Cook, Almanac of Amer

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ican Politics 2002, p. 1448 (2001). See Henderson, supra, at
767, and n. 47. Although the 1991 plan was enacted by the
state legislature, Democratic Congressman Martin Frost was
acknowledged as its architect. Session, supra, at 482. The
1991 plan “carefully constructs democratic districts ‘with in
credibly convoluted lines’ and packs ‘heavily Republican’
suburban areas into just a few districts.” Henderson,
supra, at 767, n. 47 (quoting M. Barone & R. Cohen, Almanac
of American Politics 2004, p. 1510 (2003) (hereinafter 2004
Almanac)).
Voters who considered this unfair and unlawful treatment
sought to invalidate the 1991 plan as an unconstitutional par
tisan gerrymander, but to no avail. See Terrazas v. Slagle,
789 F. Supp. 828, 833 (WD Tex. 1992); Terrazas v. Slagle, 821
F. Supp. 1162, 1175 (WD Tex. 1993) (per curiam). The 1991
plan realized the hopes of Democrats and the fears of Re
publicans with respect to the composition of the Texas con
gressional delegation. The 1990’s were years of continued
growth for the Texas Republican Party, and by the end of
the decade it was sweeping elections for statewide office.
Nevertheless, despite carrying 59% of the vote in statewide
elections in 2000, the Republicans only won 13 congressional
seats to the Democrats’ 17. Henderson, supra, at 763.
These events likely were not forgotten by either party
when it came time to draw congressional districts in con
formance with the 2000 census and to incorporate two addi
tional seats for the Texas delegation. The Republican Party
controlled the governorship and the State Senate; it did not
yet control the State House of Representatives, however.
As so constituted, the legislature was unable to pass a redis
tricting scheme, resulting in litigation and the necessity of a
court-ordered plan to comply with the Constitution’s one
person, one-vote requirement. See Balderas v. Texas, Civ.
Action No. 6:01CV158 (ED Tex., Nov. 14, 2001) (per curiam),
summarily aff ’d, 536 U. S. 919 (2002), App. E to Juris. State
ment in No. 05–276, p. 202a (hereinafter Balderas, App. E to

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Juris. Statement). The congressional districting map re
sulting from the Balderas litigation is known as Plan 1151C.
As we have said, two members of the three-judge court
that drew Plan 1151C later served on the three-judge court
that issued the judgment now under review. Thus we have
the benefit of their candid comments concerning the re
districting approach taken in the Balderas litigation. Con
scious that the primary responsibility for drawing congres
sional districts is given to political branches of government,
and hesitant to “und[o] the work of one political party for the
benefit of another,” the three-judge Balderas court sought
to apply “only ‘neutral’ redistricting standards” when draw
ing Plan 1151C. Henderson, 399 F. Supp. 2d, at 768. Once
the District Court applied these principles—such as placing
the two new seats in high-growth areas, following county
and voting precinct lines, and avoiding the pairing of incum
bents—“the drawing ceased, leaving the map free of further
change except to conform it to one-person, one-vote.” Ibid.
Under Plan 1151C, the 2002 congressional elections resulted
in a 17-to-15 Democratic majority in the Texas delegation,
compared to a 59% to 40% Republican majority in votes for
statewide office in 2000. Id., at 763–764. Reflecting on the
Balderas plan, the District Court in Henderson was candid
to acknowledge “[t]he practical effect of this effort was to
leave the 1991 Democratic Party gerrymander largely in
place as a ‘legal’ plan.” 399 F. Supp. 2d, at 768.
The continuing influence of a court-drawn map that “per
petuated much of [the 1991] gerrymander,” ibid., was not lost
on Texas Republicans when, in 2003, they gained control of
the State House of Representatives and, thus, both houses
of the legislature. The Republicans in the legislature “set
out to increase their representation in the congressional del
egation.” Session, 298 F. Supp. 2d, at 471. See also id., at
470 (“There is little question but that the single-minded pur
pose of the Texas Legislature in enacting [a new plan] was
to gain partisan advantage”). After a protracted partisan

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struggle, during which Democratic legislators left the State
for a time to frustrate quorum requirements, the legislature
enacted a new congressional districting map in October 2003.
It is called Plan 1374C. The 2004 congressional elections
did not disappoint the plan’s drafters. Republicans won
21 seats to the Democrats’ 11, while also obtaining 58% of
the vote in statewide races against the Democrats’ 41%.
Henderson, supra, at 764.
Soon after Texas enacted Plan 1374C, appellants chal
lenged it in court, alleging a host of constitutional and statu
tory violations. Initially, the District Court entered judg
ment against appellants on all their claims. See Session, 298
F. Supp. 2d, at 457; id., at 515 (Ward, J., concurring in part
and dissenting in part). Appellants sought relief here and,
after their jurisdictional statements were filed, this Court
issued Vieth v. Jubelirer. Our order vacating the District
Court judgment and remanding for consideration in light of
Vieth was issued just weeks before the 2004 elections. See
543 U. S. 941 (Oct. 18, 2004). On remand, the District Court,
believing the scope of its mandate was limited to questions of
political gerrymandering, again rejected appellants’ claims.
Henderson, 399 F. Supp. 2d, at 777–778. Judge Ward would
have granted relief under the theory—presented to the court
for the first time on remand—that mid-decennial redistrict
ing violates the one-person, one-vote requirement, but he
concluded such an argument was not within the scope of the
remand mandate. Id., at 779, 784–785 (specially concurring).
II
A
Based on two similar theories that address the mid-decade
character of the 2003 redistricting, appellants now argue that
Plan 1374C should be invalidated as an unconstitutional par
tisan gerrymander. In Davis v. Bandemer, 478 U. S. 109
(1986), the Court held that an equal protection challenge to
a political gerrymander presents a justiciable case or contro

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versy, id., at 118–127, but there was disagreement over what
substantive standard to apply. Compare id., at 127–137
(plurality opinion), with id., at 161–162 (Powell, J., concurring
in part and dissenting in part). That disagreement persists.
A plurality of the Court in Vieth would have held such chal
lenges to be nonjusticiable political questions, but a majority
declined to do so. See 541 U. S., at 306 (Kennedy, J., con
curring in judgment); id., at 317 (Stevens, J., dissenting);
id., at 343 (Souter, J., dissenting); id., at 355 (Breyer,
J., dissenting). We do not revisit the justiciability holding
but do proceed to examine whether appellants’ claims offer
the Court a manageable, reliable measure of fairness for
determining whether a partisan gerrymander violates the
Constitution.
B
Before addressing appellants’ arguments on mid-decade
redistricting, it is appropriate to note some basic principles
on the roles the States, Congress, and the courts play in de
termining how congressional districts are to be drawn. Ar
ticle I of the Constitution provides:
“Section 2. The House of Representatives shall be
composed of Members chosen every second Year by the
People of the several States . . . .
. . . . .
“Section 4. The Times, Places and Manner of holding
Elections for . . . Representatives, shall be prescribed in
each State by the Legislature thereof; but the Congress
may at any time by Law make or alter such Regula
tions . . . .”
This text, we have explained, “leaves with the States pri
mary responsibility for apportionment of their federal con
gressional . . . districts.” Growe v. Emison, 507 U. S. 25,
34 (1993); see also Chapman v. Meier, 420 U. S. 1, 27 (1975)
(“[R]eapportionment is primarily the duty and responsibility
of the State through its legislature or other body”); Smiley

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v. Holm, 285 U. S. 355, 366–367 (1932) (reapportionment im
plicated State’s powers under Art. I, § 4). Congress, as the
text of the Constitution also provides, may set further re
quirements, and with respect to districting it has generally
required single-member districts. See U. S. Const., Art. I,
§ 4; Pub. L. 90–196, 81 Stat. 581, 2 U. S. C. § 2c; Branch v.
Smith, 538 U. S. 254, 266–267 (2003). But see id., at 275
(plurality opinion) (multimember districts permitted by 55
Stat. 762, 2 U. S. C. § 2a(c) in limited circumstances). With
respect to a mid-decade redistricting to change districts
drawn earlier in conformance with a decennial census, the
Constitution and Congress state no explicit prohibition.
Although the legislative branch plays the primary role in
congressional redistricting, our precedents recognize an im
portant role for the courts when a districting plan violates
the Constitution. See, e. g., Wesberry v. Sanders, 376 U. S.
1 (1964). This litigation is an example, as we have discussed.
When Texas did not enact a plan to comply with the one
person, one-vote requirement under the 2000 census, the Dis
trict Court found it necessary to draw a redistricting map
on its own. That the federal courts sometimes are required
to order legislative redistricting, however, does not shift the
primary locus of responsibility.
“Legislative bodies should not leave their reappor
tionment tasks to the federal courts; but when those
with legislative responsibilities do not respond, or the
imminence of a state election makes it impractical for
them to do so, it becomes the ‘unwelcome obligation’ of
the federal court to devise and impose a reapportion
ment plan pending later legislative action.” Wise v.
Lipscomb, 437 U. S. 535, 540 (1978) (principal opinion)
(quoting Connor v. Finch, 431 U. S. 407, 415 (1977)).
Quite apart from the risk of acting without a legislature’s
expertise, and quite apart from the difficulties a court faces
in drawing a map that is fair and rational, see id., at 414–415,

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the obligation placed upon the Federal Judiciary is unwel
come because drawing lines for congressional districts is one
of the most significant acts a State can perform to ensure
citizen participation in republican self-governance. That
Congress is the federal body explicitly given constitutional
power over elections is also a noteworthy statement of pref
erence for the democratic process. As the Constitution
vests redistricting responsibilities foremost in the legisla
tures of the States and in Congress, a lawful, legislatively
enacted plan should be preferable to one drawn by the
courts.
It should follow, too, that if a legislature acts to replace a
court-drawn plan with one of its own design, no presumption
of impropriety should attach to the legislative decision to act.
As the District Court noted here, Session, 298 F. Supp. 2d,
at 460–461, our decisions have assumed that state legisla
tures are free to replace court-mandated remedial plans by
enacting redistricting plans of their own. See, e. g., Upham
v. Seamon, 456 U. S. 37, 44 (1982) (per curiam); Wise, supra,
at 540 (principal opinion) (quoting Connor, supra, at 415);
Burns v. Richardson, 384 U. S. 73, 85 (1966); Reynolds v.
Sims, 377 U. S. 533, 587 (1964). Underlying this principle is
the assumption that to prefer a court-drawn plan to a legisla
ture’s replacement would be contrary to the ordinary and
proper operation of the political process. Judicial respect
for legislative plans, however, cannot justify legislative reli
ance on improper criteria for districting determinations.
With these considerations in mind, I now turn to consider
appellants’ challenges to the new redistricting plan.
C
Appellants claim that Plan 1374C, enacted by the Texas
Legislature in 2003, is an unconstitutional political gerry
mander. A decision, they claim, to effect mid-decennial re
districting, when solely motivated by partisan objectives, vi
olates equal protection and the First Amendment because it

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serves no legitimate public purpose and burdens one group
because of its political opinions and affiliation. The mid
decennial nature of the redistricting, appellants say, reveals
the legislature’s sole motivation. Unlike Vieth, where the
legislature acted in the context of a required decennial redis
tricting, the Texas Legislature voluntarily replaced a plan
that itself was designed to comply with new census data.
Because Texas had “no constitutional obligation to act at all”
in 2003, Brief for Appellant Jackson et al. in No. 05–276,
p. 26, it is hardly surprising, according to appellants, that the
District Court found “[t]here is little question but that the
single-minded purpose of the Texas Legislature in enacting
Plan 1374C was to gain partisan advantage” for the Republi
can majority over the Democratic minority, Session, supra,
at 470.
A rule, or perhaps a presumption, of invalidity when a
mid-decade redistricting plan is adopted solely for partisan
motivations is a salutary one, in appellants’ view, for then
courts need not inquire about, nor parties prove, the discrim
inatory effects of partisan gerrymandering—a matter that
has proved elusive since Bandemer. See Vieth, 541 U. S., at
281 (plurality opinion); Bandemer, 478 U. S., at 127 (plurality
opinion). Adding to the test’s simplicity is that it does not
quibble with the drawing of individual district lines but chal
lenges the decision to redistrict at all.
For a number of reasons, appellants’ case for adopting
their test is not convincing. To begin with, the state appel
lees dispute the assertion that partisan gain was the “sole”
motivation for the decision to replace Plan 1151C. There is
some merit to that criticism, for the pejorative label over
looks indications that partisan motives did not dictate the
plan in its entirety. The legislature does seem to have de
cided to redistrict with the sole purpose of achieving a Re
publican congressional majority, but partisan aims did not
guide every line it drew. As the District Court found, the
contours of some contested district lines were drawn based

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on more mundane and local interests. Session, supra, at
472–473. The state appellees also contend, and appellants
do not contest, that a number of line-drawing requests by
Democratic state legislators were honored. Brief for State
Appellees 34.
Evaluating the legality of acts arising out of mixed motives
can be complex, and affixing a single label to those acts can
be hazardous, even when the actor is an individual perform
ing a discrete act. See, e. g., Hartman v. Moore, 547 U. S.
250, 259–260 (2006). When the actor is a legislature and the
act is a composite of manifold choices, the task can be even
more daunting. Appellants’ attempt to separate the legisla
ture’s sole motive for discarding Plan 1151C from the com
plex of choices it made while drawing the lines of Plan 1374C
seeks to avoid that difficulty. We should be skeptical, how
ever, of a claim that seeks to invalidate a statute based on a
legislature’s unlawful motive but does so without reference
to the content of the legislation enacted.
Even setting this skepticism aside, a successful claim at
tempting to identify unconstitutional acts of partisan gerry
mandering must do what appellants’ sole-motivation theory
explicitly disavows: show a burden, as measured by a reliable
standard, on the complainants’ representational rights. For
this reason, a majority of the Court rejected a test proposed
in Vieth that is markedly similar to the one appellants pre
sent today. Compare 541 U. S., at 336 (Stevens, J., dissent
ing) (“Just as race can be a factor in, but cannot dictate the
outcome of, the districting process, so too can partisanship
be a permissible consideration in drawing district lines, so
long as it does not predominate”), and id., at 338 (“[A]n ac
ceptable rational basis can be neither purely personal nor
purely partisan”), with id., at 292–295 (plurality opinion), and
id., at 307–308 (Kennedy, J., concurring in judgment).
The sole-intent standard offered here is no more compel
ling when it is linked to the circumstance that Plan 1374C
is mid-decennial legislation. The text and structure of the

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Constitution and our case law indicate there is nothing inher
ently suspect about a legislature’s decision to replace mid
decade a court-ordered plan with one of its own. And even
if there were, the fact of mid-decade redistricting alone is no
sure indication of unlawful political gerrymanders. Under
appellants’ theory, a highly effective partisan gerrymander
that coincided with decennial redistricting would receive less
scrutiny than a bumbling, yet solely partisan, mid-decade
redistricting. More concretely, the test would leave un
touched the 1991 Texas redistricting, which entrenched a
party on the verge of minority status, while striking down
the 2003 redistricting plan, which resulted in the majority
Republican Party capturing a larger share of the seats. A
test that treats these two similarly effective power plays in
such different ways does not have the reliability appellants
ascribe to it.
Furthermore, compared to the map challenged in Vieth,
which led to a Republican majority in the congressional dele
gation despite a Democratic majority in the statewide vote,
Plan 1374C can be seen as making the party balance more
congruent to statewide party power. To be sure, there is
no constitutional requirement of proportional representation,
and equating a party’s statewide share of the vote with its
portion of the congressional delegation is a rough measure at
best. Nevertheless, a congressional plan that more closely
reflects the distribution of state party power seems a less
likely vehicle for partisan discrimination than one that en
trenches an electoral minority. See Gaffney v. Cummings,
412 U. S. 735, 754 (1973). By this measure, Plan 1374C can
be seen as fairer than the plan that survived in Vieth and
the two previous Texas plans—all three of which would pass
the modified sole-intent test that Plan 1374C would fail.
A brief for one of the amici proposes a symmetry standard
that would measure partisan bias by “compar[ing] how both
parties would fare hypothetically if they each (in turn) had
received a given percentage of the vote.” Brief for Gary

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King et al. 5. Under that standard the measure of a map’s
bias is the extent to which a majority party would fare better
than the minority party, should their respective shares of the
vote reverse. Amici’s proposed standard does not compen
sate for appellants’ failure to provide a reliable measure of
fairness. The existence or degree of asymmetry may in
large part depend on conjecture about where possible vote
switchers will reside. Even assuming a court could choose
reliably among different models of shifting voter prefer
ences, we are wary of adopting a constitutional standard that
invalidates a map based on unfair results that would occur in
a hypothetical state of affairs. Presumably such a challenge
could be litigated if and when the feared inequity arose.
Cf. Abbott Laboratories v. Gardner, 387 U. S. 136, 148 (1967).
More fundamentally, the counterfactual plaintiff would face
the same problem as the present, actual appellants: provid
ing a standard for deciding how much partisan dominance
is too much. Without altogether discounting its utility in
redistricting planning and litigation, I would conclude asym
metry alone is not a reliable measure of unconstitutional
partisanship.
In the absence of any other workable test for judging par
tisan gerrymanders, one effect of appellants’ focus on mid
decade redistricting could be to encourage partisan excess at
the outset of the decade, when a legislature redistricts pur
suant to its decennial constitutional duty and is then immune
from the charge of sole motivation. If mid-decade redis
tricting were barred or at least subject to close judicial over
sight, opposition legislators would also have every incentive
to prevent passage of a legislative plan and try their luck
with a court that might give them a better deal than negotia
tion with their political rivals. See Henderson, 399 F. Supp.
2d, at 776–777.
D
Appellants’ second political gerrymandering theory is that
mid-decade redistricting for exclusively partisan purposes

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violates the one-person, one-vote requirement. They ob
serve that population variances in legislative districts are
tolerated only if they “are unavoidable despite a good-faith
effort to achieve absolute equality, or for which justification
is shown.” Karcher v. Daggett, 462 U. S. 725, 730 (1983)
(quoting Kirkpatrick v. Preisler, 394 U. S. 526, 531 (1969);
internal quotation marks omitted). Working from this un
challenged premise, appellants contend that, because the
population of Texas has shifted since the 2000 census, the
2003 redistricting, which relied on that census, created un
lawful interdistrict population variances.
To distinguish the variances in Plan 1374C from those of
ordinary, 3-year-old districting plans or belatedly drawn
court-ordered plans, appellants again rely on the voluntary,
mid-decade nature of the redistricting and its partisan moti
vation. Appellants do not contend that a decennial redis
tricting plan would violate equal representation three or five
years into the decade if the State’s population had shifted
substantially. As they must, they concede that States oper
ate under the legal fiction that their plans are constitution
ally apportioned throughout the decade, a presumption that
is necessary to avoid constant redistricting, with accompany
ing costs and instability. See Georgia v. Ashcroft, 539 U. S.
461, 488, n. 2 (2003); Reynolds, 377 U. S., at 583. Appel
lants agree that a plan implemented by a court in 2001 using
2000 population data also enjoys the benefit of the so-called
legal fiction, presumably because belated court-drawn plans
promote other important interests, such as ensuring a plan
complies with the Constitution and voting rights legislation.
In appellants’ view, however, this fiction should not pro
vide a safe harbor for a legislature that enacts a voluntary,
mid-decade plan overriding a legal court-drawn plan, thus
“ ‘unnecessarily’ ” creating population variance “when there
was no legal compulsion” to do so. Brief for Appellant
Travis County et al. in No. 05–254, p. 18. This is particu
larly so, appellants say, when a legislature acts because of an

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exclusively partisan motivation. Under appellants’ theory
this improper motive at the outset seems enough to condemn
the map for violating the equal-population principle. For
this reason, appellants believe that the State cannot justify
under Karcher v. Daggett the population variances in Plan
1374C because they are the product of partisan bias and the
desire to eliminate all competitive districts.
As the District Court noted, this is a test that turns not
on whether a redistricting furthers equal-population princi
ples but rather on the justification for redrawing a plan in
the first place. Henderson, supra, at 776. In that respect
appellants’ approach merely restates the question whether
it was permissible for the Texas Legislature to redraw the
districting map. Appellants’ answer, which mirrors their at
tack on mid-decennial redistricting solely motivated by par
tisan considerations, is unsatisfactory for reasons we have
already discussed.
Appellants also contend that the legislature intentionally
sought to manipulate population variances when it enacted
Plan 1374C. There is, however, no District Court finding
to that effect, and appellants present no specific evidence to
support this serious allegation of bad faith. Because appel
lants have not demonstrated that the legislature’s decision
to enact Plan 1374C constitutes a violation of the equal
population requirement, we find unavailing their subsidiary
reliance on Larios v. Cox, 300 F. Supp. 2d 1320 (ND Ga.) (per
curiam), summarily aff ’d, 542 U. S. 947 (2004). In Larios,
the District Court reviewed the Georgia Legislature’s decen
nial redistricting of its State Senate and House of Repre
sentatives districts and found deviations from the equal
population requirement. The District Court then held the
objectives of the drafters, which included partisan interests
along with regionalist bias and inconsistent incumbent pro
tection, did not justify those deviations. 300 F. Supp. 2d, at
1351–1352. The Larios holding and its examination of the
legislature’s motivations were relevant only in response to

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an equal-population violation, something appellants have not
established here. Even in addressing political motivation
as a justification for an equal-population violation, more
over, Larios does not give clear guidance. The panel ex
plained it “need not resolve the issue of whether or when
partisan advantage alone may justify deviations in popula
tion” because the plans were “plainly unlawful” and any
partisan motivations were “bound up inextricably” with
other clearly rejected objectives. Id., at 1352.
In sum, we disagree with appellants’ view that a legisla
ture’s decision to override a valid, court-drawn plan mid
decade is sufficiently suspect to give shape to a reliable
standard for identifying unconstitutional political gerryman
ders. We conclude that appellants have established no le
gally impermissible use of political classifications. For this
reason, they state no claim on which relief may be granted
for their statewide challenge.
III
Plan 1374C made changes to district lines in south and
west Texas that appellants challenge as violations of § 2 of
the Voting Rights Act and the Equal Protection Clause of
the Fourteenth Amendment. The most significant changes
occurred to District 23, which—both before and after the
redistricting—covers a large land area in west Texas, and to
District 25, which earlier included Houston but now includes
a different area, a north-south strip from Austin to the Rio
Grande Valley.
After the 2002 election, it became apparent that District
23 as then drawn had an increasingly powerful Latino popu
lation that threatened to oust the incumbent Republican,
Henry Bonilla. Before the 2003 redistricting, the Latino
share of the citizen voting-age population was 57.5%, and
Bonilla’s support among Latinos had dropped with each suc
cessive election since 1996. Session, 298 F. Supp. 2d, at 488–
489. In 2002, Bonilla captured only 8% of the Latino vote,

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ibid., and 51.5% of the overall vote. Faced with this loss
of voter support, the legislature acted to protect Bonilla’s
incumbency by changing the lines—and hence the population
mix—of the district. To begin with, the new plan divided
Webb County and the city of Laredo, on the Mexican border,
that formed the county’s population base. Webb County,
which is 94% Latino, had previously rested entirely within
District 23; under the new plan, nearly 100,000 people were
shifted into neighboring District 28. Id., at 489. The rest
of the county, approximately 93,000 people, remained in Dis
trict 23. To replace the numbers District 23 lost, the State
added voters in counties comprising a largely Anglo, Repub
lican area in central Texas. Id., at 488. In the newly drawn
district, the Latino share of the citizen voting-age population
dropped to 46%, though the Latino share of the total voting
age population remained just over 50%. Id., at 489.
These changes required adjustments elsewhere, of course,
so the State inserted a third district between the two dis
tricts to the east of District 23, and extended all three of
them farther north. New District 25 is a long, narrow strip
that winds its way from McAllen and the Mexican-border
towns in the south to Austin, in the center of the State and
300 miles away. Id., at 502. In between it includes seven
full counties, but 77% of its population resides in split coun
ties at the northern and southern ends. Of this 77%,
roughly half reside in Hidalgo County, which includes McAl
len, and half are in Travis County, which includes parts of
Austin. Ibid. The Latinos in District 25, comprising 55%
of the district’s citizen voting-age population, are also mostly
divided between the two distant areas, north and south. Id.,
at 499. The Latino communities at the opposite ends of Dis
trict 25 have divergent “needs and interests,” id., at 502,
owing to “differences in socio-economic status, education,
employment, health, and other characteristics,” id., at 512.
The District Court summed up the purposes underlying
the redistricting in south and west Texas: “The change to

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Congressional District 23 served the dual goal of increasing
Republican seats in general and protecting Bonilla’s incum
bency in particular, with the additional political nuance that
Bonilla would be reelected in a district that had a majority
of Latino voting age population—although clearly not a ma
jority of citizen voting age population and certainly not an
effective voting majority.” Id., at 497. The goal in creating
District 25 was just as clear: “[t]o avoid retrogression under
§ 5” of the Voting Rights Act given the reduced Latino voting
strength in District 23. Id., at 489.
A
The question we address is whether Plan 1374C violates
§ 2 of the Voting Rights Act. A State violates § 2
“if, based on the totality of circumstances, it is shown
that the political processes leading to nomination or elec
tion in the State or political subdivision are not equally
open to participation by members of [a racial group] in
that its members have less opportunity than other mem
bers of the electorate to participate in the political proc
ess and to elect representatives of their choice.” 42
U. S. C. § 1973(b).
The Court has identified three threshold conditions for es
tablishing a § 2 violation: (1) the racial group is “ ‘ “suffi
ciently large and geographically compact to constitute a ma
jority in a single-member district” ’ ”; (2) the racial group is
“ ‘ “politically cohesive” ’ ”; and (3) the majority “ ‘ “vot[es]
sufficiently as a bloc to enable it . . . usually to defeat the
minority’s preferred candidate.” ’ ” Johnson v. De Grandy,
512 U. S. 997, 1006–1007 (1994) (quoting Growe, 507 U. S., at
40 (in turn quoting Thornburg v. Gingles, 478 U. S. 30, 50–51
(1986))). These are the so-called Gingles requirements.
If all three Gingles requirements are established, the stat
utory text directs us to consider the “totality of circum
stances” to determine whether members of a racial group

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have less opportunity than do other members of the elector
ate. De Grandy, supra, at 1011–1012; see also Abrams v.
Johnson, 521 U. S. 74, 91 (1997). The general terms of the
statutory standard “totality of circumstances” require judi
cial interpretation. For this purpose, the Court has re
ferred to the Senate Report on the 1982 amendments to the
Voting Rights Act, which identifies factors typically relevant
to a § 2 claim, including:
“the history of voting-related discrimination in the State
or political subdivision; the extent to which voting in the
elections of the State or political subdivision is racially
polarized; the extent to which the State or political sub
division has used voting practices or procedures that
tend to enhance the opportunity for discrimination
against the minority group . . . ; the extent to which
minority group members bear the effects of past dis
crimination in areas such as education, employment, and
health, which hinder their ability to participate effec
tively in the political process; the use of overt or subtle
racial appeals in political campaigns; and the extent to
which members of the minority group have been elected
to public office in the jurisdiction. The Report notes
also that evidence demonstrating that elected officials
are unresponsive to the particularized needs of the
members of the minority group and that the policy un
derlying the State’s or the political subdivision’s use
of the contested practice or structure is tenuous may
have probative value.” Gingles, supra, at 44–45 (citing
S. Rep. No. 97–417 (1982) (hereinafter Senate Report);
pinpoint citations omitted).
Another relevant consideration is whether the number of
districts in which the minority group forms an effective ma
jority is roughly proportional to its share of the population
in the relevant area. De Grandy, supra, at 1000.

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The District Court’s determination whether the § 2 re
quirements are satisfied must be upheld unless clearly erro
neous. See Gingles, supra, at 78–79. Where “the ultimate
finding of dilution” is based on “a misreading of the govern
ing law,” however, there is reversible error. De Grandy,
supra, at 1022.
B
Appellants argue that the changes to District 23 diluted
the voting rights of Latinos who remain in the district.
Specifically, the redrawing of lines in District 23 caused the
Latino share of the citizen voting-age population to drop
from 57.5% to 46%. The District Court recognized that
“Latino voting strength in Congressional District 23 is, un
questionably, weakened under Plan 1374C.” Session, 298
F. Supp. 2d, at 497. The question is whether this weakening
amounts to vote dilution.
To begin the Gingles analysis, it is evident that the second
and third Gingles preconditions—cohesion among the minor
ity group and bloc voting among the majority population—
are present in District 23. The District Court found “ra
cially polarized voting” in south and west Texas, and indeed
“throughout the State.” Session, supra, at 492–493. The
polarization in District 23 was especially severe: 92% of La
tinos voted against Bonilla in 2002, while 88% of non-Latinos
voted for him. App. 134, Table 20 (expert Report of Allan
J. Lichtman on Voting-Rights Issues in Texas Congressional
Redistricting (Nov. 14, 2003) (hereinafter Lichtman Report)).
Furthermore, the projected results in new District 23 show
that the Anglo citizen voting-age majority will often, if not
always, prevent Latinos from electing the candidate of their
choice in the district. Session, supra, at 496–497. For all
these reasons, appellants demonstrated sufficient minority
cohesion and majority bloc voting to meet the second and
third Gingles requirements.
The first Gingles factor requires that a group be “suffi
ciently large and geographically compact to constitute a ma

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jority in a single-member district.” 478 U. S., at 50. Latinos
in District 23 could have constituted a majority of the citizen
voting-age population in the district, and in fact did so under
Plan 1151C. Though it may be possible for a citizen voting
age majority to lack real electoral opportunity, the Latino
majority in old District 23 did possess electoral opportunity
protected by § 2.
While the District Court stated that District 23 had not
been an effective opportunity district under Plan 1151C, it
recognized the district was “moving in that direction.” Ses
sion, 298 F. Supp. 2d, at 489. Indeed, by 2002 the Latino
candidate of choice in District 23 won the majority of the
district’s votes in 13 out of 15 elections for statewide office
holders. Id., at 518 (Ward, J., concurring in part and dis
senting in part). And in the congressional race, Bonilla
could not have prevailed without some Latino support, lim
ited though it was. State legislators changed District 23
specifically because they worried that Latinos would vote
Bonilla out of office. Id., at 488.
Furthermore, to the extent the District Court suggested
that District 23 was not a Latino opportunity district in 2002
simply because Bonilla prevailed, see id., at 488, 495, it was
incorrect. The circumstance that a group does not win elec
tions does not resolve the issue of vote dilution. We have
said that “the ultimate right of § 2 is equality of opportunity,
not a guarantee of electoral success for minority-preferred
candidates of whatever race.” De Grandy, 512 U. S., at
1014, n. 11. In old District 23 the increase in Latino voter
registration and overall population, Session, 298 F. Supp. 2d,
at 523 (Ward, J., concurring in part and dissenting in part),
the concomitant rise in Latino voting power in each succes
sive election, the near-victory of the Latino candidate of
choice in 2002, and the resulting threat to the Bonilla incum
bency, were the very reasons that led the State to redraw
the district lines. Since the redistricting prevented the im
mediate success of the emergent Latino majority in District

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23, there was a denial of opportunity in the real sense of
that term.
Plan 1374C’s version of District 23, by contrast, “is unques
tionably not a Latino opportunity district.” Id., at 496.
Latinos, to be sure, are a bare majority of the voting-age
population in new District 23, but only in a hollow sense, for
the parties agree that the relevant numbers must include
citizenship. This approach fits the language of § 2 because
only eligible voters affect a group’s opportunity to elect can
didates. In sum, appellants have established that Latinos
could have had an opportunity district in District 23 had its
lines not been altered and that they do not have one now.
Considering the district in isolation, the three Gingles re
quirements are satisfied. The State argues, nonetheless,
that it met its § 2 obligations by creating new District 25 as
an offsetting opportunity district. It is true, of course, that
“States retain broad discretion in drawing districts to com
ply with the mandate of § 2.” Shaw v. Hunt, 517 U. S. 899,
917, n. 9 (1996) (Shaw II). This principle has limits, though.
The Court has rejected the premise that a State can always
make up for the less-than-equal opportunity of some individ
uals by providing greater opportunity to others. See id., at
917 (“The vote-dilution injuries suffered by these persons
are not remedied by creating a safe majority-black district
somewhere else in the State”). As set out below, these con
flicting concerns are resolved by allowing the State to use
one majority-minority district to compensate for the absence
of another only when the racial group in each area had a § 2
right and both could not be accommodated.
As to the first Gingles requirement, it is not enough that
appellants show the possibility of creating a majority
minority district that would include the Latinos in District
23. See Shaw II, supra, at 917, n. 9 (rejecting the idea that
“a § 2 plaintiff has the right to be placed in a majority
minority district once a violation of the statute is shown”).
If the inclusion of the plaintiffs would necessitate the exclu

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sion of others, then the State cannot be faulted for its choice.
That is why, in the context of a challenge to the drawing of
district lines, “the first Gingles condition requires the possi
bility of creating more than the existing number of reason
ably compact districts with a sufficiently large minority pop
ulation to elect candidates of its choice.” De Grandy, supra,
at 1008.
The District Court found that the current plan contains
six Latino opportunity districts and that seven reasonably
compact districts could not be drawn. Appellant GI Forum
presented a plan with seven majority-Latino districts, but
the District Court found these districts were not reason
ably compact, in part because they took in “disparate and
distant communities. ” Session, supra, at 491–492, and
n. 125. While there was some evidence to the contrary, the
court’s resolution of the conflicting evidence was not clearly
erroneous.
A problem remains, though, for the District Court failed
to perform a comparable compactness inquiry for Plan 1374C
as drawn. De Grandy requires a comparison between a
challenger’s proposal and the “existing number of reasonably
compact districts.” 512 U. S., at 1008. To be sure, § 2 does
not forbid the creation of a noncompact majority-minority
district. Bush v. Vera, 517 U. S., at 999 (Kennedy, J., con
curring). The noncompact district cannot, however, remedy
a violation elsewhere in the State. See Shaw II, supra, at
916 (unless “the district contains a ‘geographically compact’
population” of the racial group, “where that district sits,
‘there neither has been a wrong nor can be a remedy’ ” (quot
ing Growe, 507 U. S., at 41)). Simply put, the State’s cre
ation of an opportunity district for those without a § 2 right
offers no excuse for its failure to provide an opportunity
district for those with a § 2 right. And since there is no
§ 2 right to a district that is not reasonably compact, see
Abrams, 521 U. S., at 91–92, the creation of a noncompact

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district does not compensate for the dismantling of a compact
opportunity district.
The Chief Justice claims compactness should be only a
factor in the analysis, see post, at 507 (opinion concurring in
part, concurring in judgment in part, and dissenting in part),
but his approach comports neither with our precedents nor
with the nature of the right established by § 2. De Grandy
expressly stated that the first Gingles prong looks only to
the number of “reasonably compact districts.” 512 U. S., at
1008. Shaw II, moreover, refused to consider a noncompact
district as a possible remedy for a § 2 violation. 517 U. S.,
at 916. It is true Shaw II applied this analysis in the con
text of a State’s using compliance with § 2 as a defense to an
equal protection challenge, but the holding was clear: A
State cannot remedy a § 2 violation through the creation of
a noncompact district. Ibid. Shaw II also cannot be distin
guished based on the relative location of the remedial district
as compared to the district of the alleged violation. The re
medial district in Shaw II had a 20% overlap with the district
the plaintiffs sought, but the Court stated “[w]e do not think
this degree of incorporation could mean [the remedial dis
trict] substantially addresses the § 2 violation.” Id., at 918;
see also De Grandy, supra, at 1019 (expressing doubt about
the idea that even within the same county, vote dilution in
half the county could be compensated for in the other half).
The overlap here is not substantially different, as the major
ity of Latinos who were in the old District 23 are still in the
new District 23, but no longer have the opportunity to elect
their candidate of choice.
Apart from its conflict with De Grandy and Shaw II, The
Chief Justice’s approach has the deficiency of creating a
one-way rule whereby plaintiffs must show compactness but
States need not (except, it seems, when using § 2 as a defense
to an equal protection challenge). The Chief Justice ap
pears to accept that a plaintiff, to make out a § 2 violation,

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must show he or she is part of a racial group that could form
a majority in a reasonably compact district. Post, at 505.
If, however, a noncompact district cannot make up for the
lack of a compact district, then this is equally true whether
the plaintiff or the State proposes the noncompact district.
The District Court stated that Plan 1374C created “six
Gingles Latino” districts, Session, 298 F. Supp. 2d, at 498,
but it failed to decide whether District 25 was reasonably
compact for § 2 purposes. It recognized there was a 300
mile gap between the Latino communities in District 25, and
a similarly large gap between the needs and interests of the
two groups. Id., at 502. After making these observations,
however, it did not make any finding about compactness.
Id., at 502–504. It ruled instead that, despite these con
cerns, District 25 would be an effective Latino opportunity
district because the combined voting strength of both La
tino groups would allow a Latino-preferred candidate to pre
vail in elections. Ibid. The District Court’s general find
ing of effectiveness cannot substitute for the lack of a finding
on compactness, particularly because the District Court
measured effectiveness simply by aggregating the voting
strength of the two groups of Latinos. Id., at 503–504.
Under the District Court’s approach, a district would satisfy
§ 2 no matter how noncompact it was, so long as all the mem
bers of a racial group, added together, could control elec
tion outcomes.
The District Court did evaluate compactness for the pur
pose of deciding whether race predominated in the drawing
of district lines. The Latinos in the Rio Grande Valley and
those in Central Texas, it found, are “disparate communities
of interest,” with “differences in socio-economic status, edu
cation, employment, health, and other characteristics.” Id.,
at 512. The court’s conclusion that the relative smoothness
of the district lines made the district compact, despite this
combining of discrete communities of interest, is inapposite

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because the court analyzed the issue only for equal protec
tion purposes. In the equal protection context, compactness
focuses on the contours of district lines to determine whether
race was the predominant factor in drawing those lines.
See Miller v. Johnson, 515 U. S. 900, 916–917 (1995). Under
§ 2, by contrast, the injury is vote dilution, so the compact
ness inquiry embraces different considerations. “The first
Gingles condition refers to the compactness of the minority
population, not to the compactness of the contested district.”
Vera, 517 U. S., at 997 (Kennedy, J., concurring); see also
Abrams, 521 U. S., at 111 (Breyer, J., dissenting) (compact
ness to show a violation of equal protection, “which concerns
the shape or boundaries of a district, differs from § 2 com
pactness, which concerns a minority group’s compactness”);
Shaw II, supra, at 916 (the inquiry under § 2 is whether “the
minority group is geographically compact” (internal quota
tion marks omitted)).
While no precise rule has emerged governing § 2 com
pactness, the “inquiry should take into account ‘traditional
districting principles such as maintaining communities of in
terest and traditional boundaries.’ ” Abrams, supra, at 92
(quoting Vera, 517 U. S., at 977 (plurality opinion)); see also
id., at 979 (A district that “reaches out to grab small and
apparently isolated minority communities” is not reasonably
compact). The recognition of nonracial communities of in
terest reflects the principle that a State may not “assum[e]
from a group of voters’ race that they ‘think alike, share the
same political interests, and will prefer the same candidates
at the polls.’ ” Miller, supra, at 920 (quoting Shaw v. Reno,
509 U. S. 630, 647 (1993)). In the absence of this prohibited
assumption, there is no basis to believe a district that com
bines two farflung segments of a racial group with disparate
interests provides the opportunity that § 2 requires or that
the first Gingles condition contemplates. “The purpose
of the Voting Rights Act is to prevent discrimination in

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the exercise of the electoral franchise and to foster our trans
formation to a society that is no longer fixated on race.”
Georgia v. Ashcroft, 539 U. S., at 490; cf. post, at 511 (opinion
of Roberts, C. J.). We do a disservice to these important
goals by failing to account for the differences between people
of the same race.
While the District Court recognized the relevant differ
ences, by not performing the compactness inquiry, it failed
to account for the significance of these differences under § 2.
In these cases the District Court’s findings regarding the
different characteristics, needs, and interests of the Latino
community near the Mexican border and the one in and
around Austin are well supported and uncontested. Legiti
mate yet differing communities of interest should not be dis
regarded in the interest of race. The practical consequence
of drawing a district to cover two distant, disparate commu
nities is that one or both groups will be unable to achieve
their political goals. Compactness is, therefore, about more
than “style points,” post, at 494 (opinion of Roberts, C. J.); it
is critical to advancing the ultimate purposes of § 2, ensuring
minority groups equal “opportunity . . . to participate in the
political process and to elect representatives of their choice.”
42 U. S. C. § 1973(b). (And if it were just about style points,
it is difficult to understand why a plaintiff would have to
propose a compact district to make out a § 2 claim.) As wit
nesses who know the south and west Texas culture and poli
tics testified, the districting in Plan 1374C “could make it
more difficult for thinly financed Latino-preferred candi
dates to achieve electoral success and to provide adequate
and responsive representation once elected.” Session, 298
F. Supp. 2d, at 502; see also id., at 503 (Elected officials from
the region “testified that the size and diversity of the newly
configured districts could make it more difficult for the con
stituents in the Rio Grande Valley to control election out
comes”). We do not question the District Court’s finding
that the groups’ combined voting strength would enable

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them to elect a candidate each prefers to the Anglos’ candi
date of choice. We also accept that in some cases members
of a racial group in different areas—for example, rural and
urban communities—could share similar interests and there
fore form a compact district if the areas are in reasonably
close proximity. See Abrams, supra, at 111–112 (Breyer,
J., dissenting). When, however, the only common index is
race and the result will be to cause internal friction, the
State cannot make this a remedy for a § 2 violation else
where. We emphasize it is the enormous geographical dis
tance separating the Austin and Mexican-border communi
ties, coupled with the disparate needs and interests of these
populations—not either factor alone—that renders District
25 noncompact for § 2 purposes. The mathematical possibil
ity of a racial bloc does not make a district compact.
Since District 25 is not reasonably compact, Plan 1374C
contains only five reasonably compact Latino opportunity
districts. Plan 1151C, by contrast, created six such dis
tricts. The District Court did not find, and the State does
not contend, that any of the Latino opportunity districts
in Plan 1151C are noncompact. Contrary to The Chief
Justice’s suggestion, post, at 501, moreover, the Latino pop
ulation in old District 23 is, for the most part, in closer geo
graphic proximity than is the Latino population in new Dis
trict 25. More importantly, there has been no contention
that different pockets of the Latino population in old District
23 have divergent needs and interests, and it is clear that, as
set out below, the Latino population of District 23 was split
apart particularly because it was becoming so cohesive.
The Latinos in District 23 had found an efficacious political
identity, while this would be an entirely new and difficult
undertaking for the Latinos in District 25, given their geo
graphic and other differences.
Appellants have thus satisfied all three Gingles require
ments as to District 23, and the creation of new District 25
does not remedy the problem.

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C
We proceed now to the totality of the circumstances, and
first to the proportionality inquiry, comparing the percent
age of total districts that are Latino opportunity districts
with the Latino share of the citizen voting-age population.
As explained in De Grandy, proportionality is “a relevant
fact in the totality of circumstances.” 512 U. S., at 1000. It
does not, however, act as a “safe harbor” for States in com
plying with § 2. Id., at 1017–1018; see also id., at 1025
(O’Connor, J., concurring) (proportionality “is always rele
vant evidence in determining vote dilution, but is never itself
dispositive”); id., at 1027–1028 (Kennedy, J., concurring in
part and concurring in judgment) (proportionality has “some
relevance,” though “placing undue emphasis upon propor
tionality risks defeating the goals underlying the Voting
Rights Act”). If proportionality could act as a safe harbor,
it would ratify “an unexplored premise of highly suspect va
lidity: that in any given voting jurisdiction . . . , the rights
of some minority voters under § 2 may be traded off against
the rights of other members of the same minority class.”
Id., at 1019; see also Shaw II, 517 U. S., at 916–918.
The State contends that proportionality should be decided
on a regional basis, while appellants say their claim requires
the Court to conduct a statewide analysis. In De Grandy,
the plaintiffs “passed up the opportunity to frame their dilu
tion claim in statewide terms.” 512 U. S., at 1022. Based
on the parties’ apparent agreement that the proper frame of
reference was the Dade County area, the Court used that
area to decide proportionality. Id., at 1022–1023. In these
cases, on the other hand, appellants allege an “injury to Afri
can American and Hispanic voters throughout the State.”
Complaint in Civ. Action No. 03C–356 (ED Tex.), pp. 1–2; see
also First Amended Complaint in Civ. Action No. 2:03–354
(ED Tex.), pp. 1, 5, 7; Plaintiff ’s First Amended Complaint
in Civ. Action No. 2:03cv354 etc. (ED Tex.), pp. 4–5. The
District Court, moreover, expressly considered the state

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wide proportionality argument. As a result, the question of
the proper geographic scope for assessing proportionality
now presents itself.
We conclude the answer in these cases is to look at propor
tionality statewide. The State contends that the seven dis
tricts in south and west Texas correctly delimit the bound
aries for proportionality because that is the only area of the
State where reasonably compact Latino opportunity districts
can be drawn. This argument, however, misunderstands
the role of proportionality. We have already determined,
under the first Gingles factor, that another reasonably com
pact Latino district can be drawn. The question now is
whether the absence of that additional district constitutes
impermissible vote dilution. This inquiry requires an “ ‘in
tensely local appraisal’ ” of the challenged district. Gingles,
478 U. S., at 79 (quoting Rogers v. Lodge, 458 U. S. 613, 622
(1982)); see also Gingles, supra, at 101 (O’Connor, J., concur
ring in judgment). A local appraisal is necessary because
the right to an undiluted vote does not belong to the “minor
ity as a group,” but rather to “its individual members.”
Shaw II, supra, at 917. And a State may not trade off the
rights of some members of a racial group against the rights
of other members of that group. See De Grandy, supra, at
1019; Shaw II, supra, at 916–918. The question is therefore
not “whether line-drawing in the challenged area as a whole
dilutes minority voting strength,” post, at 504 (opinion of
Roberts, C. J.), but whether line-drawing dilutes the voting
strength of the Latinos in District 23.
The role of proportionality is not to displace this local ap
praisal or to allow the State to trade off the rights of some
against the rights of others. Instead, it provides some evi
dence of whether “the political processes leading to nomina
tion or election in the State or political subdivision are not
equally open to participation.” 42 U. S. C. § 1973(b). For
this purpose, the State’s seven-district area is arbitrary. It
just as easily could have included six or eight districts. Ap

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pellants have alleged statewide vote dilution based on a
statewide plan, so the electoral opportunities of Latinos
across the State can bear on whether the lack of electoral
opportunity for Latinos in District 23 is a consequence of
Plan 1374C’s redrawing of lines or simply a consequence of
the inevitable “win some, lose some” in a State with racial
bloc voting. Indeed, several of the other factors in the total
ity of circumstances have been characterized with reference
to the State as a whole. Gingles, supra, at 44–45 (listing
Senate Report factors). Particularly given the presence of
racially polarized voting—and the possible submergence of
minority votes—throughout Texas, it makes sense to use the
entire State in assessing proportionality.
Looking statewide, there are 32 congressional districts.
The five reasonably compact Latino opportunity districts
amount to roughly 16% of the total, while Latinos make up
22% of Texas’ citizen voting-age population. (Appellant GI
Forum claims, based on data from the 2004 American Com
munity Survey of the U. S. Census Bureau, that Latinos con
stitute 24.5% of the statewide citizen voting-age population,
but as this figure was neither available at the time of the
redistricting, nor presented to the District Court, we accept
the District Court’s finding of 22%.) Latinos are, therefore,
two districts shy of proportional representation. There is,
of course, no “magic parameter,” De Grandy, 512 U. S., at
1017, n. 14, and “rough proportionality,” id., at 1023, must
allow for some deviations. We need not decide whether the
two-district deficit in these cases weighs in favor of a § 2
violation. Even if Plan 1374C’s disproportionality were
deemed insubstantial, that consideration would not overcome
the other evidence of vote dilution for Latinos in District 23.
“[T]he degree of probative value assigned to proportionality
may vary with other facts,” id., at 1020, and the other facts
in these cases convince us that there is a § 2 violation.
District 23’s Latino voters were poised to elect their candi
date of choice. They were becoming more politically active,

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with a marked and continuous rise in Spanish-surnamed
voter registration. See Lichtman Report, App. 142–143.
In successive elections Latinos were voting against Bonilla
in greater numbers, and in 2002 they almost ousted him.
Webb County in particular, with a 94% Latino population,
spurred the incumbent’s near defeat with dramatically in
creased turnout in 2002. See 2004 Almanac 1579. In re
sponse to the growing participation that threatened Bonilla’s
incumbency, the State divided the cohesive Latino commu
nity in Webb County, moving about 100,000 Latinos to Dis
trict 28, which was already a Latino opportunity district, and
leaving the rest in a district where they now have little hope
of electing their candidate of choice.
The changes to District 23 undermined the progress of a
racial group that has been subject to significant voting
related discrimination and that was becoming increasingly
politically active and cohesive. Cf. De Grandy, supra, at
1014 (finding no § 2 violation where “the State’s scheme
would thwart the historical tendency to exclude Hispanics,
not encourage or perpetuate it”); White v. Regester, 412 U. S.
755, 769 (1973) (looking in the totality of the circumstances
to whether the proposed districting would “remedy the ef
fects of past and present discrimination against Mexican-
Americans, and to bring the community into the full stream
of political life of the county and State by encouraging their
further registration, voting, and other political activities” (ci
tation and internal quotation marks omitted)). The District
Court recognized “the long history of discrimination against
Latinos and Blacks in Texas,” Session, 298 F. Supp. 2d, at
473, and other courts have elaborated on this history with
respect to electoral processes:
“Texas has a long, well-documented history of discrimi
nation that has touched upon the rights of African-
Americans and Hispanics to register, to vote, or to par
ticipate otherwise in the electoral process. Devices
such as the poll tax, an all-white primary system, and

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restrictive voter registration time periods are an unfor
tunate part of this State’s minority voting rights history.
The history of official discrimination in the Texas elec
tion process—stretching back to Reconstruction—led to
the inclusion of the State as a covered jurisdiction under
Section 5 in the 1975 amendments to the Voting Rights
Act. Since Texas became a covered jurisdiction, the
Department of Justice has frequently interposed objec
tions against the State and its subdivisions.” Vera v.
Richards, 861 F. Supp. 1304, 1317 (SD Tex. 1994) (cita
tions omitted).
See also Vera, 517 U. S., at 981–982 (plurality opinion); Re
gester, supra, at 767–769. In addition, the “political, social,
and economic legacy of past discrimination” for Latinos in
Texas, Session, supra, at 492, may well “hinder their ability
to participate effectively in the political process,” Gingles,
478 U. S., at 45 (citing Senate Report factors).
Against this background, the Latinos’ diminishing elec
toral support for Bonilla indicates their belief he was “unre
sponsive to the particularized needs of the members of the
minority group.” Ibid. (same). In essence the State took
away the Latinos’ opportunity because Latinos were about
to exercise it. This bears the mark of intentional discrimi
nation that could give rise to an equal protection violation.
Even if we accept the District Court’s finding that the State’s
action was taken primarily for political, not racial, reasons,
Session, supra, at 508, the redrawing of the district lines was
damaging to the Latinos in District 23. The State not only
made fruitless the Latinos’ mobilization efforts but also
acted against those Latinos who were becoming most politi
cally active, dividing them with a district line through the
middle of Laredo.
Furthermore, the reason for taking Latinos out of District
23, according to the District Court, was to protect Congress
man Bonilla from a constituency that was increasingly voting
against him. The Court has noted that incumbency protec

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tion can be a legitimate factor in districting, see Karcher v.
Daggett, 462 U. S., at 740, but experience teaches that incum
bency protection can take various forms, not all of them in
the interests of the constituents. If the justification for in
cumbency protection is to keep the constituency intact so the
officeholder is accountable for promises made or broken, then
the protection seems to accord with concern for the voters.
If, on the other hand, incumbency protection means exclud
ing some voters from the district simply because they are
likely to vote against the officeholder, the change is to benefit
the officeholder, not the voters. By purposely redrawing
lines around those who opposed Bonilla, the state legislature
took the latter course. This policy, whatever its validity in
the realm of politics, cannot justify the effect on Latino vot
ers. See Gingles, supra, at 45 (citing Senate Report factor
of whether “the policy underlying” the State’s action “is ten
uous”). The policy becomes even more suspect when consid
ered in light of evidence suggesting that the State intention
ally drew District 23 to have a nominal Latino voting-age
majority (without a citizen voting-age majority) for political
reasons. Session, supra, at 497. This use of race to create
the facade of a Latino district also weighs in favor of appel
lants’ claim.
Contrary to The Chief Justice’s suggestion that we are
reducing the State’s needed flexibility in complying with § 2,
see post, at 506, the problem here is entirely of the State’s
own making. The State chose to break apart a Latino op
portunity district to protect the incumbent congressman
from the growing dissatisfaction of the cohesive and politi
cally active Latino community in the district. The State
then purported to compensate for this harm by creating an
entirely new district that combined two groups of Latinos,
hundreds of miles apart, that represent different communi
ties of interest. Under § 2, the State must be held account
able for the effect of these choices in denying equal opportu

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nity to Latino voters. Notwithstanding these facts, The
Chief Justice places great emphasis on the District Court’s
statement that “new District 25 is ‘a more effective Latino
opportunity district than Congressional District 23 had
been.’ ” Post, at 493 (quoting Session, 298 F. Supp. 2d, at
503). Even assuming this statement, expressed in the con
text of summarizing witnesses’ testimony, qualifies as a find
ing of the District Court, two points make it of minimal
relevance. First, as previously noted, the District Court
measured the effectiveness of District 25 without accounting
for the detrimental consequences of its compactness prob
lems. Second, the District Court referred only to how effec
tive District 23 “had been,” not to how it would operate
today, a significant distinction given the growing Latino po
litical power in the district.
Based on the foregoing, the totality of the circumstances
demonstrates a § 2 violation. Even assuming Plan 1374C
provides something close to proportional representation for
Latinos, its troubling blend of politics and race—and the re
sulting vote dilution of a group that was beginning to achieve
§ 2’s goal of overcoming prior electoral discrimination—can
not be sustained.
D
Because we hold Plan 1374C violates § 2 in its redrawing
of District 23, we do not address appellants’ claims that the
use of race and politics in drawing that district violates the
First Amendment and equal protection. We also need not
confront appellants’ claim of an equal protection violation in
the drawing of District 25. The districts in south and west
Texas will have to be redrawn to remedy the violation in
District 23, and we have no cause to pass on the legitimacy
of a district that must be changed. See Session, 298 F.
Supp. 2d, at 528 (Ward, J., concurring in part and dissenting
in part). District 25, in particular, was formed to compen
sate for the loss of District 23 as a Latino opportunity dis
trict, and there is no reason to believe District 25 will remain

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in its current form once District 23 is brought into compli
ance with § 2. We therefore vacate the District Court’s
judgment as to these claims.
IV
Appellants also challenge the changes to district lines in
the Dallas area, alleging they dilute African-American vot
ing strength in violation of § 2 of the Voting Rights Act.
Specifically, appellants contend that an African-American mi
nority effectively controlled District 24 under Plan 1151C,
and that § 2 entitles them to this district.
Before Plan 1374C was enacted, District 24 had elected
Anglo Democrat Martin Frost to Congress in every election
since 1978. Id., at 481–482. Anglos were the largest racial
group in the district, with 49.8% of the citizen voting-age
population, and third largest were Latinos, with 20.8%.
State’s Exh. 57, App. 339. African-Americans were the
second-largest group, with 25.7% of the citizen voting-age
population, ibid., and they voted consistently for Frost. The
new plan broke apart this racially diverse district, assigning
its pieces into several other districts.
Accepting that African-Americans would not be a majority
of the single-member district they seek, and that African-
Americans do not vote cohesively with Hispanics, Session,
supra, at 484, appellants nonetheless contend African-
Americans had effective control of District 24. As the
Court has done several times before, we assume for purposes
of this litigation that it is possible to state a § 2 claim for a
racial group that makes up less than 50% of the population.
See De Grandy, 512 U. S., at 1009; Voinovich v. Quilter, 507
U. S. 146, 154 (1993); Gingles, 478 U. S., at 46–47, n. 12.
Even on the assumption that the first Gingles prong can ac
commodate this claim, however, appellants must show they
constitute “a sufficiently large minority to elect their can
didate of choice with the assistance of cross-over votes.”
Voinovich, supra, at 158 (emphasis deleted).

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The relatively small African-American population can
meet this standard, according to appellants, because its
members constituted 64% of the voters in the Democratic
primary. Since a significant number of Anglos and Latinos
voted for the Democrat in the general election, the argument
goes, African-American control of the primary translated
into effective control of the entire election.
The D istr ic t Cour t found, however, that Afr ican-
Americans could not elect their candidate of choice in the
primary. In support of this finding, it relied on testimony
that the district was drawn for an Anglo Democrat, the fact
that Frost had no opposition in any of his primary elections
since his incumbency began, and District 24’s demographic
similarity to another district where an African-American
candidate failed when he ran against an Anglo. Session, 298
F. Supp. 2d, at 483–484. “In short, that Anglo Democrats
control this district is,” according to the District Court, “the
most rational conclusion.” Id., at 484.
Appellants fail to demonstrate clear error in this finding.
In the absence of any contested Democratic primary in Dis
trict 24 over the last 20 years, no obvious benchmark exists
for deciding whether African-Americans could elect their
candidate of choice. The fact that African-Americans voted
for Frost—in the primary and general elections—could sig
nify he is their candidate of choice. Without a contested pri
mary, however, it could also be interpreted to show (assum
ing racial bloc voting) that Anglos and Latinos would vote in
the Democratic primary in greater numbers if an African-
American candidate of choice were to run, especially given
Texas’ open primary system. The District Court heard trial
testimony that would support both explanations, and we can
not say that it erred in crediting the testimony that endorsed
the latter interpretation. Compare App. 242–243 (testi
mony of Tarrant County Precinct Administrator that Frost
is the “favored candidate of the African-American commu
nity” and that he has gone unopposed in primary challenges

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because he “serves [the African-American community’s] in
terests”) with id., at 262–264 (testimony of Congresswoman
Eddie Bernice Johnson that District 24 was drawn for an
Anglo Democrat (Martin Frost, in particular) in 1991 by
splitting a minority community), and id., at 277–280 (testi
mony of State Representative Ron Wilson that African-
Americans did not have the ability to elect their preferred
candidate, particularly an African-American candidate, in
District 24 and that Anglo Democrats in such “influence
[d]istricts” were not fully responsive to the needs of the
African-American community).
The analysis submitted by appellants’ own expert was also
inconsistent. Of the three elections for statewide office he
examined, in District 24 the African-American candidate
of choice would have won one, lost one, and in the third
the African-American vote was split. See Lichtman Report,
id., at 75–76, 92–96; State’s Exh. 20 in Civ. Action
No. 2:03–CV–354 (ED Tex.), p. 138; State’s Exh. 21 in Civ.
Action No. 2:03–CV–354 (ED Tex.). The District Court
committed no clear error in rejecting this questionable show
ing that African-Americans have the ability to elect their
candidate of choice in favor of other evidence that an
African-American candidate of choice would not prevail.
See Anderson v. Bessemer City, 470 U. S. 564, 574 (1985)
(“Where there are two permissible views of the evidence,
the factfinder’s choice between them cannot be clearly
erroneous”).
That African-Americans had influence in the district, Ses
sion, supra, at 485, does not suffice to state a § 2 claim in
these cases. The opportunity “to elect representatives of
their choice,” 42 U. S. C. § 1973(b), requires more than the
ability to influence the outcome between some candidates,
none of whom is their candidate of choice. There is no doubt
African-Americans preferred Martin Frost to the Republi
cans who opposed him. The fact that African-Americans
preferred Frost to some others does not, however, make him

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their candidate of choice. Accordingly, the ability to aid in
Frost’s election does not make the old District 24 an
African-American opportunity district for purposes of § 2.
If § 2 were interpreted to protect this kind of influence, it
would unnecessarily infuse race into virtually every redis
tricting, raising serious constitutional questions. See Geor
gia v. Ashcroft, 539 U. S., at 491 (Kennedy, J., concurring).
Appellants respond by pointing to Georgia v. Ashcroft,
where the Court held that the presence of influence districts
is a relevant consideration under § 5 of the Voting Rights
Act. The inquiry under § 2, however, concerns the opportu
nity “to elect representatives of their choice,” 42 U. S. C.
§ 1973(b), not whether a change has the purpose or effect of
“denying or abridging the right to vote,” § 1973c. Ashcroft
recognized the differences between these tests, 539 U. S., at
478, and concluded that the ability of racial groups to elect
candidates of their choice is only one factor under § 5, id., at
480. So while the presence of districts “where minority vot
ers may not be able to elect a candidate of choice but can play
a substantial, if not decisive, role in the electoral process” is
relevant to the § 5 analysis, id., at 482, the lack of such dis
tricts cannot establish a § 2 violation. The failure to create
an influence district in these cases thus does not run afoul of
§ 2 of the Voting Rights Act.
Appellants do not raise a district-specific political gerry
mandering claim against District 24. Even if the claim were
cognizable as part of appellants’ statewide challenge, it
would be unpersuasive. Just as for the statewide claim, ap
pellants would lack any reliable measure of partisan fairness.
Justice Stevens suggests the burden on representational
rights can be measured by comparing the success of Demo
crats in old District 24 with their success in the new districts
they now occupy. Post, at 475–476 (opinion concurring in
part and dissenting in part). There is no reason, however,
why the old district has any special claim to fairness. In
fact, old District 24, no less than the old redistricting plan as

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a whole, was formed for partisan reasons. See Session, 298
F. Supp. 2d, at 484; see also Balderas, App. E to Juris. State
ment 208a. Furthermore, Justice Stevens’ conclusion
that the State has not complied with § 5 of the Voting Rights
Act, post, at 478–481—effectively overruling the Attorney
General without briefing, argument, or a lower court opinion
on the issue—does not solve the problem of determining a
reliable measure of impermissible partisan effect.
* * *
We reject the statewide challenge to Texas’ redistricting
as an unconstitutional political gerrymander and the chal
lenge to the redistricting in the Dallas area as a violation of
§ 2 of the Voting Rights Act. We do hold that the redrawing
of lines in District 23 violates § 2 of the Voting Rights Act.
The judgment of the District Court is affirmed in part, re
versed in part, and vacated in part, and the cases are re
manded for further proceedings.
It is so ordered.
Justice Stevens, with whom Justice Breyer joins as
to Parts I and II, concurring in part and dissenting in part.
This is a suit in which it is perfectly clear that judicially
manageable standards enable us to decide the merits of a
statewide challenge to a political gerrymander. Applying
such standards, I shall explain why the wholly unnecessary
replacement of the neutral plan fashioned by the three-judge
court in Balderas v. Texas, Civ. Action No. 6:01CV158 (ED
Tex., Nov. 14, 2001) (per curiam) (Plan 1151C or Balderas
Plan) with Plan 1374C, which creates districts with less com
pact shapes, violates the Voting Rights Act of 1965, and
fragments communities of interest—all for purely partisan
purposes—violated the State’s constitutional duty to gov
ern impartially. Prior misconduct by the Texas Legislature
neither excuses nor justifies that violation. Accordingly,
while I join the Court’s decision to invalidate District 23, I

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would hold that Plan 1374C is entirely invalid and direct
the District Court to reinstate Plan 1151C. Moreover, as
I shall explain, even if the remainder of the plan were
valid, the cracking of Balderas District 24 would still be
unconstitutional.
I
The maintenance of existing district boundaries is advan
tageous to both voters and candidates. Changes, of course,
must be made after every census to equalize the population
of each district or to accommodate changes in the size of a
State’s congressional delegation. Similarly, changes must
be made in response to a finding that a districting plan vio
lates § 2 or § 5 of the Voting Rights Act, 42 U. S. C. §§ 1973,
1973c. But the interests in orderly campaigning and voting,
as well as in maintaining communication between repre
sentatives and their constituents, underscore the importance
of requiring that any decision to redraw district bound
aries—like any other state action that affects the electoral
process—must, at the very least, serve some legitimate gov
ernmental purpose. See, e. g., Burdick v. Takushi, 504 U. S.
428, 434, 440 (1992); id., at 448–450 (Kennedy, J., joined by
Blackmun and Stevens, JJ., dissenting). A purely partisan
desire “to minimize or cancel out the voting strength of ra
cial or political elements of the voting population,” Fortson
v. Dorsey, 379 U. S. 433, 439 (1965), is not such a purpose.
Because a desire to minimize the strength of Texas Demo
crats was the sole motivation for the adoption of Plan 1374C,
see Session v. Perry, 298 F. Supp. 2d 451, 470, 472 (ED Tex.
2004) (per curiam), the plan cannot withstand constitu
tional scrutiny.
The districting map that Plan 1374C replaced, Plan 1151C,
was not only manifestly fair and neutral, it may legitimately
be described as a milestone in Texas’ political history be
cause it put an end to a long history of Democratic misuse of
power in that State. For decades after the Civil War, the
political party associated with the former Commander in

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Chief of the Union Army attracted the support of former
slaves and a handful of “carpetbaggers,” but had no signifi
cant political influence in Texas. The Democrats maintained
their political power by excluding black voters from partici
pating in primary elections, see, e. g., Smith v. Allwright,
321 U. S. 649, 656–661 (1944), by the artful management of
multimember electoral schemes, see, e. g., White v. Regester,
412 U. S. 755, 765–770 (1973), and, most recently, by outrage
ously partisan gerrymandering, see ante, at 410–411 (opinion
of Kennedy, J.); Bush v. Vera, 517 U. S. 952, 987–990 (1996)
(appendixes in plurality opinion), id., at 1005–1007, 1042–
1045 (Stevens, J., dissenting). Unfortunately, some of
these tactics are not unique to Texas Democrats; the appor
tionment scheme they devised in the 1990’s is only one exam
ple of the excessively gerrymandered districting plans that
parties with control of their States’ governing bodies have
implemented in recent years. See, e. g., Cox v. Larios, 542
U. S. 947, 947–950 (2004) (Stevens, J., joined by Breyer, J.,
concurring) (Democratic gerrymander in Georgia); Vieth v.
Jubelirer, 541 U. S. 267, 272 (2004) (plurality opinion); id.,
at 342 (Stevens, J., dissenting) (Republican gerrymander in
Pennsylvania); Karcher v. Daggett, 462 U. S. 725, 744 (1983)
(Democratic gerrymander in New Jersey); Badham v. Eu,
694 F. Supp. 664, 666 (ND Cal. 1988), summarily aff ’d, 488
U. S. 1024 (1989) (Democratic gerrymander in California).
Despite the Texas Democratic Party’s sordid history of
manipulating the electoral process to perpetuate its strangle
hold on political power, the Texas Republican Party managed
to become the State’s majority party by 2002. If, after fi
nally achieving political strength in Texas, the Republicans
had adopted a new plan in order to remove the excessively
partisan Democratic gerrymander of the 1990’s, the deci
sion to do so would unquestionably have been supported by
a neutral justification. But that is not what happened. In
stead, as the following discussion of the relevant events that

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transpired in Texas following the release of the 2000 census
data demonstrates, Texas Republicans abandoned a neutral
apportionment map for the sole purpose of manipulating dis
trict boundaries to maximize their electoral advantage and
thus create their own impermissible stranglehold on politi
cal power.
By 2001, Texas Republicans had overcome many of the
aforementioned tactics designed to freeze the Democrats’
status as the State’s dominant party, and Republicans con
trolled the governorship and the State Senate. Democrats,
however, continued to constitute a majority of the State
House of Representatives. In March of that year, the re
sults of the 2000 decennial census revealed that, as a result
of its population growth, Texas was entitled to two additional
seats in the United States House of Representatives, bring
ing the size of the Texas congressional delegation to 32.
Texas, therefore, was required to draw 32 equipopulous dis
tricts to account for its additional representation and to com
ply with the one-person, one-vote mandate of Article I, § 2,
see, e. g., Karcher, 462 U. S. 725. Under Texas law, the
Texas Legislature was required to draw these new districts.
See Session, 298 F. Supp. 2d, at 457–458.
The Texas Legislature, divided between a Republican Sen
ate and a Democratic House, did not reach agreement on a
new congressional map in the regular legislative session,
and Governor Rick Perry declined to call a special session.
Litigation in the Texas state courts also failed to result in a
plan, as the Texas Supreme Court vacated the map created
by a state trial judge. See Perry v. Del Rio, 67 S. W. 3d
85 (2001). This left a three-judge Federal District Court in
the Eastern District of Texas with “ ‘the unwelcome obliga
tion of performing in the legislature’s stead.’ ” Balderas v.
Texas, Civ. Action No. 6:01CV158 (Nov. 14, 2001) (per cu
riam), App. E to Juris. Statement in No. 05–276, p. 202a
(hereinafter App. to Juris. Statement) (quoting Connor v.
Finch, 431 U. S. 407, 415 (1977)).

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After protracted proceedings, which included the testi
mony of an impartial expert as well as representatives of
interested groups supporting different plans, the court pre
pared its own plan. “Conscious that the primary responsi
bility for drawing congressional districts is given to political
branches of government, and hesitant to ‘und[o] the work of
one political party for the benefit of another,’ the three-judge
Balderas court sought to apply ‘only “neutral” redistrict
ing standards’ when drawing Plan 1151C.” Ante, at 412
(opinion of Kennedy, J.) (quoting Henderson v. Perry, 399
F. Supp. 2d 756, 768 (ED Tex. 2005)). As the court ex
plained, it started with a blank map of Texas, drew in the
existing districts protected by the Voting Rights Act, located
the new Districts 31 and 32 where the population growth
that produced them had occurred, and then applied the neu
tral criteria of “compactness, contiguity, and respecting
county and municipal boundaries.” App. to Juris. State
ment 205a. See id., at 206a–209a. The District Court pur
posely “eschewed an effort to treat old lines as an independ
ent locator,” and concluded that its plan had done much “to
end most of the below-the-surface ‘ripples’ of the 1991 plan
and the myriad of submissions before us. For example, the
patently irrational shapes of Districts 5 and 6 under the 1991
plan, widely cited as the most extreme but successful gerry
mandering in the country, are no more.” Id., at 207a–208a.
At the conclusion of this process, the court believed that
it had fashioned a map that was “likely to produce a congres
sional delegation roughly proportional to the party voting
breakdown across the state.” Id., at 209a. Indeed, reflect
ing the growing strength of the Republican Party, the Dis
trict Court’s plan, Plan 1151C, offered that party an advan
tage in 20 of the 32 congressional seats. See Session, 298
F. Supp. 2d, at 471 (describing Plan 1151C). The State’s ex
pert in this litigation testified that the Balderas Plan was
not biased in favor of Democrats and that it was “[m]aybe
slightly” biased in favor of Republicans. App. 224 (deposi

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tion of Ronald Keith Gaddie, Ph.D.). Although groups of
Latino voters challenged Plan 1151C on appeal, neither
major political party did so, and the State of Texas filed a
motion asking this Court to affirm the District Court’s judg
ment, which we did, Balderas v. Texas, 536 U. S. 919 (2002).
In the 2002 congressional elections, however, Republicans
were not able to capitalize on the advantage that the Bal
deras Plan had provided them. A number of Democratic
incumbents were able to attract the votes of ticket-splitters
(individuals who voted for candidates from one party in
statewide elections and for a candidate from a different party
in congressional elections), and thus won elections in some
districts that favored Republicans. As a result, Republicans
carried only 15 of the districts drawn by the Balderas court.1
While the Republicans did not do as well as they had
hoped in elections for the United States House of Repre
sentatives, they made gains in the Texas House of Repre
sentatives and won a majority of seats in that body. This
gave Texas Republicans control over both bodies of the state
legislature, as well as the Governor’s mansion, for the first
time since Reconstruction.
With full control of the State’s legislative and executive
branches, the Republicans “decided to redraw the state’s
1 It was apparently these electoral results that later caused the District
Court to state that “the practical effect” of Plan 1151C “was to leave the
1991 Democratic Party gerrymander largely in place as a ‘legal’ plan.”
Henderson v. Perry, 399 F. Supp. 2d 756, 768 (ED Tex. 2005); see id., at
768, n. 52. But the existence of ticket-splitting voters hardly demon
strates that Plan 1151C was biased in favor of Democrats. Instead, as
noted above, even the State’s expert in this litigation concluded that Plan
1151C was, if anything, biased in favor of Republicans. Nor do the cir
cumstances surrounding the replacement of Plan 1151C suggest that the
legislature was motivated by a misimpression that Plan 1151C was unfair
to Republicans, and accordingly should be replaced with a more equitable
map. Rather, as discussed in detail below, it is clear that the sole motiva
tion for enacting a new districting map was to maximize Republican
advantage.

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congressional districts solely for the purpose of seizing be
tween five and seven seats from Democratic incumbents.”
Session, 298 F. Supp. 2d, at 472 (internal quotation marks
omitted). According to former Lieutenant Governor Bill
Ratliff, a highly regarded Republican member of the State
Senate, “political gain for the Republicans was 110% of the
motivation for the Plan, . . . it was ‘the entire motivation.’ ”
Id., at 473 (quoting trial transcript). Or, as the District
Court stated in the first of its two decisions in this litigation,
“[t]here is little question but that the single-minded purpose
of the Texas Legislature in enacting Plan 1374C was to gain
partisan advantage.” Id., at 470. See also ante, at 412
(opinion of Kennedy, J.) (quoting District Court’s conclu
sion). Indeed, as the State itself argued before the District
Court: “The overwhelming evidence demonstrated that par
tisan gain was the motivating force behind the decision to
redistrict in 2003.” State Defendants’ Post-Trial Brief in
No. 2:03–CV–354 (ED Tex.), p. 51 (hereinafter State Post-
Trial Brief).
This desire for political gain led to a series of dramatic
confrontations between Republicans and Democrats, and ul
timately resulted in the adoption of a plan that violated the
Voting Rights Act. The legislature did not pass a new map
in the regular 2003 session, in part because Democratic
House members absented themselves and thus denied the
body a quorum. Governor Perry then called a special ses
sion to take up congressional redistricting—the same step
he had declined to take in 2001 after the release of the decen
nial census figures, when Republicans lacked a majority in
the House. During the first special session, the House ap
proved a new congressional map, but the Senate’s longstand
ing tradition requiring two-thirds of that body to support a
measure before the full Senate will consider it allowed Dem
ocrats to block the plan.
Lieutenant Governor Dewhurst then announced that he
would suspend operation of the two-thirds rule in any future

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special session considering congressional redistricting.
Nonetheless, in a second special session, Senate Democrats
again prevented the passage of a new districting map by
leaving the State and depriving the Senate of a quorum.
When a lone Senate Democrat returned to Texas, Governor
Perry called a third special session to consider congres
sional redistricting.
During that third special session, the State Senate and the
State House passed maps that would have apparently
avoided any violation of the Voting Rights Act because they
would have, inter alia, essentially preserved Balderas Dis
trict 23, a majority-Latino district in southwest Texas, and
Balderas District 24, a majority-minority district in the
Dallas-Fort Worth area, where black voters constituted a
significant majority of voters in the Democratic primary and
usually elected their candidate of choice in the general elec
tion. Representative Phil King, the redistricting legisla
tion’s chief sponsor in the Texas House, had previously pro
posed fragmenting District 24, but, after lawyers reviewed
the map, King expressed concern that redrawing District 24
might violate the Voting Rights Act, and he drafted a new
map that left District 24 largely unchanged.
Nonetheless, the conferees seeking to reconcile the House
and Senate plans produced a map that, as part of its goal
of maximizing Republican political advantage, significantly
altered both Districts 23 and 24 as they had existed in the
Balderas Plan. Balderas District 23 was extended north to
take in roughly 100,000 new people who were predominately
Anglo and Republican, and was also moved west, thus split
ting Webb County and the city of Laredo, and pushing
roughly 100,000 people who were predominately Latino and
Democratic into an adjacent district. Session, 298 F. Supp.
2d, at 488–489. Black voters who previously resided in
Balderas District 24 were fragmented into five new districts,
each of which is predominately Anglo and Republican. See
App. 104–106. Representative King testified at trial that

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District 24 was cracked even though cracking the district
was not “ ‘the path of least resistance’ ” in terms of avoiding
Voting Rights Act liability because leaving Balderas District
24 intact would not “accomplish our political objectives.”
State Post-Trial Brief 51–52 (quoting transcript). This map
was ultimately enacted into law as Plan 1374C.
The overall effect of Plan 1374C was to shift more than
eight million Texans into new districts, and to split more
counties into more pieces than the Balderas Plan. More
over, the 32 districts in Plan 1374C are, on average, much
less compact under either of two standard measures than
their counterparts had been under the Balderas Plan. See
App. 177–178 (expert report of Professor Gaddie).2
Numerous parties filed suit in federal court challenging
Plan 1374C on the grounds that it violated § 2 of the Voting
Rights Act and that it constituted an unconstitutional parti
san gerrymander. A three-judge panel—two of whom also
were members of the Balderas court—rejected these chal
lenges, over Judge Ward’s partial dissent on the § 2 claims.
See Session, 298 F. Supp. 2d 451. Responding to plaintiffs’
appeals, we remanded for reconsideration in light of Vieth,
541 U. S. 267. See 543 U. S. 941 (2004).
In a characteristically thoughtful opinion written by Judge
Higginbotham, the District Court again rejected all chal
lenges to the constitutionality of Plan 1374C. See Hender
son, 399 F. Supp. 2d 756. It correctly found that the Consti
tution does not prohibit a state legislature from redrawing
congressional districts in the middle of a census cycle, see
id., at 766, and it also correctly recognized that this Court
has not yet endorsed clear standards for judging the validity
of partisan gerrymanders, see id., at 760–762. Because the
2 These two standard measures of compactness are the perimeter-to
area score, which compares the relative length of the perimeter of a dis
trict to its area, and the smallest circle score, which compares the ratio of
space in the district to the space in the smallest circle that could encom
pass the district. App. 178.

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District Court’s original decision, and its reconsideration of
the case in the light of the several opinions in Vieth, are
successive chapters in the saga that began with Balderas, it
is appropriate to quote this final comment from that opinion
before addressing the principal question that is now pre
sented. The Balderas court concluded:
“Finally, to state directly what is implicit in all that we
have said: political gerrymandering, a purely partisan
exercise, is inappropriate for a federal court drawing a
congressional redistricting map. Even at the hands of
a legislative body, political gerrymandering is much a
bloodfeud, in which revenge is exacted by the majority
against its rival. We have left it to the political arena,
as we must and wisely should. We do so because our
role is limited and not because we see gerrymandering
as other than what it is: an abuse of power that, at its
core, evinces a fundamental distrust of voters, serving
the self-interest of the political parties at the expense of
the public good.” App. to Juris. Statement 209a–210a
(footnote omitted).
II
The unique question of law that is raised in this appeal is
one that the Court has not previously addressed. That nar
row question is whether it was unconstitutional for Texas to
replace a lawful districting plan “in the middle of a decade,
for the sole purpose of maximizing partisan advantage.”
Juris. Statement in No. 05–276, p. i. This question is both
different from, and simpler than, the principal question pre
sented in Vieth, in which the “ ‘lack of judicially discoverable
and manageable standards’ ” prevented the plurality from
deciding the merits of a statewide challenge to a political
gerrymander. 541 U. S., at 277–278.
As the State points out, “in every political-gerrymandering
claim the Court has considered, the focus has been on the
map itself, not on the decision to create the map in the first

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place.” Brief for State Appellees 33. In defense of the map
itself, rather than the basic decision whether to draw the
map in the first place, the State notes that Plan 1374C’s dis
trict borders frequently follow county lines and other neutral
criteria. At what the State describes as the relevant “level
of granularity,” the State correctly points out that appellants
have not even attempted to argue that every district line
was motivated solely for partisan gain. Ibid. See also
ante, at 417 (opinion of Kennedy, J.) (noting that “partisan
aims did not guide every line” in Plan 1374C). Indeed, the
multitude of “granular” decisions that are made during re
districting was part of why the Vieth plurality concluded, in
the context of a statewide challenge to a redistricting plan
promulgated in response to a legal obligation to redistrict,
that there are no manageable standards to govern whether
the predominant motivation underlying the entire redistrict
ing map was partisan. See 541 U. S., at 285. But see id., at
355 (Breyer, J., dissenting) (arguing that there are judicially
manageable standards to assess statewide districting chal
lenges even when a plan is enacted in response to a legal
obligation to redistrict).
Unlike Vieth, the narrow question presented by the state
wide challenge in this litigation is whether the State’s deci
sion to draw the map in the first place, when it was under
no legal obligation to do so, was permissible. It is undeni
able that identifying the motive for making that basic deci
sion is a readily manageable judicial task. See Gomillion
v. Lightfoot, 364 U. S. 339, 341 (1960) (noting that plaintiffs’
allegations, if true, would establish by circumstantial evi
dence “tantamount for all practical purposes to a mathe
matical demonstration,” that redistricting legislation had
been enacted “solely” to segregate voters along racial lines);
cf. Personnel Administrator of Mass. v. Feeney, 442 U. S.
256, 276–280 (1979) (analyzing whether the purpose of a law
was to discriminate against women). Indeed, although the
Constitution places no per se ban on midcycle redistricting,

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a legislature’s decision to redistrict in the middle of the
census cycle, when the legislature is under no legal obli
gation to do so, makes the judicial task of identifying the
legislature’s motive simpler than it would otherwise be. As
Justice Breyer has pointed out, “the presence of midcycle
redistricting, for any reason, raises a fair inference that par
tisan machinations played a major role in the map-drawing
process.” Vieth, 541 U. S., at 367 (dissenting opinion).
The conclusion that courts can easily identify the motive
for redistricting when the legislature is under no legal obli
gation to act is reinforced by the record in this very case.
The District Court unambiguously identified the sole pur
pose behind the decision to promulgate Plan 1374C: a desire
to maximize partisan advantage. See Session, 298 F. Supp.
2d, at 472 (“It was clear from the evidence” that Republicans
“ ‘decided to redraw the state’s congressional districts solely
for the purpose of seizing between five and seven seats from
Democratic incumbents’ ” (quoting amicus brief filed in
Vieth)); 298 F. Supp. 2d, at 470 (“There is little question but
that the single-minded purpose of the Texas Legislature in
enacting Plan 1374C was to gain partisan advantage”). It
does not matter whether the District Court’s description of
that purpose qualifies as a specific finding of fact because it
is perfectly clear that there is more than ample evidence in
the record to support such a finding. This evidence in
cludes: (1) testimony from state legislators; (2) the proce
dural irregularities described above that accompanied the
adoption of Plan 1374C, including the targeted abolition of
the longstanding two-thirds rule, designed to protect the
rights of the minority party, in the Texas Senate; (3) Plan
1374C’s significant departures from the neutral districting
criteria of compactness and respect for county lines; (4) the
plan’s excessive deviations from prior districts, which inter
fere with the development of strong relationships between
Members of Congress and their constituents; and (5) the
plan’s failure to comply with the Voting Rights Act. Indeed,

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the State itself conceded that “[t]he overwhelming evidence
demonstrated that partisan gain was the motivating force
behind the decision to redistrict in 2003.” State Post-Trial
Brief 51. In my judgment, there is not even a colorable
basis for contending that the relevant intent—in this case a
purely partisan intent 3—cannot be identified on the basis of
admissible evidence in the record.4
Of course, the conclusions that courts are fully capable of
analyzing the intent behind a decision to redistrict, and that
desire for partisan gain was the sole factor motivating the
decision to redistrict at issue here, do not resolve the ques
tion whether proof of a single-minded partisan intent is suf
ficient to establish a constitutional violation.
On the merits of that question, the State seems to assume
that our decision in Upham v. Seamon, 456 U. S. 37 (1982)
(per curiam), has already established the legislature’s right
to replace a court-ordered plan with a plan drawn for purely
3 The State suggests that in the process of drawing districts the archi
tects of Plan 1374C frequently followed county lines, made an effort to
keep certain entire communities within a given district, and otherwise
followed certain neutral principles. But these facts are not relevant to
the narrow question presented by these cases: Neutral motivations in the
implementation of particular features of the redistricting do not qualify
the solely partisan motivation behind the basic decision to adopt an en
tirely unnecessary plan in the first place.
4 As noted above, rather than identifying any arguably neutral reasons
for adopting Plan 1374C, the record establishes a purely partisan single
minded motivation with unmistakable clarity. Therefore, there is no need
at this point to discuss standards that would guide judges in enforcing a
rule allowing legislatures to be motivated in part by partisan consid
erations, but which would impose an “obligation not to apply too much
partisanship in districting.” Vieth v. Jubelirer, 541 U. S. 267, 286 (2004)
(plurality opinion). Deciding that 100% is “too much” is not only a man
ageable decision, but, as explained below, it is also an obviously correct
one. Nonetheless, it is worth emphasizing that courts do, in fact, possess
the tools to employ standards that permit legislatures to consider partisan
ship in the redistricting process, but which do not allow legislatures to
use partisanship as the predominant motivation for their actions. See
Part IV, infra.

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partisan purposes. Justice Kennedy ultimately indulges
in a similar assumption, relying on Upham for the proposi
tion that “our decisions have assumed that state legisla
tures are free to replace court-mandated remedial plans by
enacting redistricting plans of their own.” Ante, at 416.
Justice Kennedy recognizes that “[j]udicial respect for
legislative plans, however, cannot justify legislative reliance
on improper criteria for districting determinations.” Ibid.
But Justice Kennedy then incorrectly concludes that the
singular intent to maximize partisan advantage is not, in it
self, such an improper criterion. Ante, at 417–418.
This reliance on Upham overlooks critical distinctions be
tween the redistricting plan the District Court drew in
Upham and the redistricting plan the District Court drew
in Balderas. The judicial plan in Upham was created to
provide an interim response to an objection by the Attorney
General that two contiguous districts in a plan originally
drafted by the Texas Legislature violated § 5 of the Voting
Rights Act. We concluded that, in fashioning its interim
remedy, the District Court had erroneously “substituted its
own reapportionment preferences for those of the state legis
lature.” 456 U. S., at 40. We held that when judicial relief
was necessary because a state legislature had failed “ ‘to re
apportion according to federal constitutional [or statutory]
requisites in a timely fashion after having had an adequate
opportunity to do so,’ ” the federal court should, as much as
possible “ ‘follow the policies and preferences of the State,’ ”
in creating a new map. Id., at 41 (quoting White v. Weiser,
412 U. S. 783, 794–795 (1973)). We did not suggest that fed
eral courts should honor partisan concerns, but rather identi
fied the relevant state policies as those “ ‘expressed in statu
tory and constitutional provisions or in the reapportionment
plans proposed by the state legislature, whenever adherence
to state policy does not detract from the requirements of the
Federal Constitution.’ ” Upham, 456 U. S., at 41 (quoting
White, 412 U. S., at 794–795). Because the District Court in

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Upham had exceeded its authority in drawing a new district
ing map, we made clear that the legislature was authorized
to remedy the § 5 violation with a map of its own choosing.
See 456 U. S., at 44. Upham, then, stands only for the prop
osition that a state legislature is authorized to redraw a
court-drawn congressional districting map when a district
court has exceeded its remedial authority. Upham does not
stand for the proposition that, after a State embraces a valid,
neutral court-drawn plan by asking this Court to affirm the
opinion creating that plan, the State may then redistrict for
the sole purpose of disadvantaging a minority political party.
Indeed, to conclude otherwise would reflect a fundamental
misunderstanding of the reason why we have held that state
legislatures, rather than federal courts, should have the pri
mary task of creating apportionment plans that comport
with federal law. We have so held because “a state legisla
ture is the institution that is by far the best situated to iden
tify and then reconcile traditional state policies” with the
requirements of federal law, Finch, 431 U. S., at 414–415, not
because we wish to supply a dominant party with an op
portunity to disadvantage its political opponents. Indeed,
a straightforward application of settled constitutional law
leads to the inescapable conclusion that the State may not
decide to redistrict if its sole motivation is “to minimize or
cancel out the voting strength of racial or political elements
of the voting population,” Fortson, 379 U. S., at 439 (empha
sis added).
The requirements of the Federal Constitution that limit
the State’s power to rely exclusively on partisan preferences
in drawing district lines are the Fourteenth Amendment’s
prohibition against invidious discrimination, and the First
Amendment’s protection of citizens from official retaliation
based on their political affiliation. The equal protection
component of the Fourteenth Amendment requires actions
taken by the sovereign to be supported by some legitimate
interest, and further establishes that a bare desire to harm

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a politically disfavored group is not a legitimate interest.
See, e. g., Cleburne v. Cleburne Living Center, Inc., 473 U. S.
432, 447 (1985). Similarly, the freedom of political belief and
association guaranteed by the First Amendment prevents
the State, absent a compelling interest, from “penalizing citi
zens because of their participation in the electoral process,
. . . their association with a political party, or their expression
of political views.” Vieth, 541 U. S., at 314 (Kennedy, J.,
concurring in judgment) (citing Elrod v. Burns, 427 U. S. 347
(1976) (plurality opinion)). These protections embodied in
the First and Fourteenth Amendments reflect the fundamen
tal duty of the sovereign to govern impartially. E. g., Lehr
v. Robertson, 463 U. S. 248, 265 (1983); New York City Tran
sit Authority v. Beazer, 440 U. S. 568 (1979).
The legislature’s decision to redistrict at issue in this liti
gation was entirely inconsistent with these principles. By
taking an action for the sole purpose of advantaging Republi
cans and disadvantaging Democrats, the State of Texas vio
lated its constitutional obligation to govern impartially. “If
a State passed an enactment that declared ‘All future appor
tionment shall be drawn so as most to burden Party X’s
rights to fair and effective representation, though still in ac
cord with one-person, one-vote principles,’ we would surely
conclude the Constitution had been violated.” Vieth, 541
U. S., at 312 (Kennedy, J., concurring in judgment).
III
Relying solely on Vieth, Justice Kennedy maintains
that even if legislation is enacted based solely on a desire to
harm a politically unpopular minority, this fact is insufficient
to establish unconstitutional partisan gerrymandering ab
sent proof that the legislation did in fact burden “the com
plainants’ representative rights.” Ante, at 418. This con
clusion—which clearly goes to the merits, rather than the
manageability, of a partisan gerrymandering claim—is not
only inconsistent with the constitutional requirement that

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state action must be supported by a legitimate interest, but
also provides an insufficient response to appellants’ claim on
the merits.
Justice Kennedy argues that adopting “the modified
sole-intent test” could “encourage partisan excess at the out
set of the decade, when a legislature redistricts pursuant to
its decennial constitutional duty and is then immune from
the charge of sole motivation.” Ante, at 419, 420. But this
would be a problem of the Court’s own making. As the deci
sion in Cox v. Larios, 542 U. S. 947, demonstrates, there are,
in fact, readily manageable judicial standards that would
allow injured parties to challenge excessive (and unconstitu
tional) partisan gerrymandering undertaken in response to
the release of the decennial census data.5 See also Vieth,
541 U. S., at 328–339 (Stevens, J., dissenting); id., at 347–353
(Souter, J., joined by Ginsburg, J., dissenting); id., at 365–
367 (Breyer, J., dissenting). Justice Kennedy’s concern
about a heightened incentive to engage in such excessive
partisan gerrymandering would be avoided if the Court were
willing to enforce those standards.
5 See Larios v. Cox, 300 F. Supp. 2d 1320, 1342–1353 (ND Ga. 2004) (per
curiam). In Cox, the three-judge District Court undertook a searching
review of the entire record in concluding that the population deviations in
the state legislative districts created for the Georgia House and Senate
after the release of the 2000 census data were not driven by any tradi
tional redistricting criteria, such as compactness or preserving county
lines, but were instead driven by the impermissible factors of regional
favoritism and the discriminatory protection of Democratic incumbents.
If there were no judicially manageable standards to assess whether a
State’s adoption of a redistricting map was based on valid governmental
objectives, we would not have summarily affirmed the decision in Cox over
the dissent of only one Justice. See 542 U. S. 947; id., at 951 (Scalia, J.,
dissenting). In addition, as Part III of the Court’s opinion and this Part
of my opinion demonstrate, assessing whether a redistricting map has a
discriminatory impact on the opportunities for voters and candidates of a
particular party to influence the political process is a manageable judicial
task.

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In any event, Justice Kennedy’s additional requirement
that there be proof that the gerrymander did in fact burden
the complainants’ representative rights is clearly satisfied by
the record in this litigation. Indeed, the Court’s accurate
exposition of the reasons why the changes to District 23 di
luted the voting rights of Latinos who remain in that district
simultaneously explains why those changes also disadvan
taged Democratic voters and thus demonstrates that the ef
fects of a political gerrymander can be evaluated pursuant to
judicially manageable standards.
In my judgment the record amply supports the conclusion
that Plan 1374C not only burdens the minority party in Dis
trict 23, but also imposes a severe statewide burden on the
ability of Democratic voters and politicians to influence the
political process.6
In arguing that Plan 1374C does not impose an unconstitu
tional burden on Democratic voters and candidates, the State
takes the position that the plan has resulted in an equitable
distribution of political power between the State’s two prin
cipal political parties. The State emphasizes that in the
2004 elections—held pursuant to Plan 1374C—Republicans
won 21 of 32, or 66%, of the congressional seats. That same
year, Republicans carried 58% of the vote in statewide elec
tions. Admittedly, these numbers do suggest that the
State’s congressional delegation was “roughly proportional”
to the parties’ share of the statewide vote, Brief for State
Appellees 44, particularly in light of the fact that our elec
toral system tends to produce a “seat bonus” in which a
party that wins a majority of the vote generally wins an
even larger majority of the seats, see Brief for Alan Heslop
et al. as Amici Curiae (describing the seat bonus phenome
6 Although the burdened group at issue in this litigation consists of Dem
ocratic voters and candidates, the partisan gerrymandering analysis
throughout this opinion would be equally applicable to any “politically co
herent group whose members engaged in bloc voting.” Vieth, 541 U. S.,
at 347 (Souter, J., joined by Ginsburg, J., dissenting).

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non). Cf. ante, at 419 (opinion of Kennedy, J.) (arguing
that, compared to the redistricting plan challenged in Vieth,
“Plan 1374C can be seen as making the party balance more
congruent to statewide party power”).
That Plan 1374C produced a “roughly proportional” con
gressional delegation in 2004 does not, however, answer the
question whether the plan has a discriminatory effect against
Democrats. As appellants point out, whether a districting
map is biased against a political party depends upon the bias
in the map itself—in other words, it depends upon the oppor
tunities that the map offers each party, regardless of how
candidates perform in a given year. And, as the State’s ex
pert found in this litigation, Plan 1374C clearly has a discrim
inatory effect in terms of the opportunities it offers the two
principal political parties in Texas. Indeed, that discrimina
tory effect is severe.
According to Professor Gaddie, the State’s expert, Plan
1374C gives Republicans an advantage in 22 of 32 congres
sional seats. The plaintiffs’ expert, Professor Alford, who
had been cited favorably by the Balderas Court as having
applied a “neutral approach” to redistricting in that litiga
tion, App. to Juris. Statement 207a, agreed. He added that,
in his view, the only surprise from the 2004 elections was
“how far things moved” toward achieving a 22-to-10 pro-
Republican split “in a single election year,” id., at 226a (dec
laration of John R. Alford, Ph.D.).7 But this 22-to-10 advan
tage does not depend on Republicans winning the 58% share
of the statewide vote that they received in 2004. Instead,
7 In the 2004 congressional elections, Republicans won 21 of the 22 seats
that had been designed to favor Republicans in Plan 1374C. One Demo
cratic incumbent, Representative Chet Edwards, narrowly defeated (with
51% of the vote) his nonincumbent Republican challenger in a Republican
leaning district; Edwards outspent his challenger, who lacked strong ties
to the principal communities in the district. Republicans are likely to
spend more money and find a stronger challenger in 2006, which will cre
ate a “very significant chance” of a Republican defeating Edwards. App.
to Juris. Statement 224a, 226a.

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according to Professor Gaddie, Republicans would be likely
to carry 22 of 32 congressional seats if they won only 52%
of the statewide vote. App. 216, 229. Put differently, Plan
1374C ensures that, even if the Democratic Party succeeds
in convincing 10% of the people who voted for Republicans
in the last statewide elections to vote for Democratic con
gressional candidates,8 which would constitute a major elec
toral shift, there is unlikely to be any change in the number
of congressional seats that Democrats win. Moreover, Re
publicans would still have an overwhelming advantage if
Democrats achieved full electoral parity. According to Pro
fessor Gaddie’s analysis, Republicans would be likely to carry
20 of the 32 congressional seats even if they only won 50%
(or, for that matter, 49%) of the statewide vote. Id., at 216,
229–230. This demonstrates that Plan 1374C is inconsistent
with the symmetry standard, a measure social scientists use
to assess partisan bias, which is undoubtedly “a reliable
standard” for measuring a “burden . . . on the complainants’
representative rights,” ante, at 418 (opinion of Kennedy, J.).
The symmetry standard “requires that the electoral sys
tem treat similarly-situated parties equally, so that each re
ceives the same fraction of legislative seats for a particular
vote percentage as the other party would receive if it had
received the same percentage.” Brief for Gary King et al.
as Amici Curiae 4–5. This standard is widely accepted by
scholars as providing a measure of partisan fairness in elec
toral systems. See, e. g., Tufte, The Relationship Between
Seats and Votes in Two-Party Systems, 67 Am. Pol. Sci. Rev.
540, 542–543 (1973); Gelman & King, Enhancing Democracy
Through Legislative Redistricting, 88 Am. Pol. Sci. Rev. 541,
545 (1994); Thompson, Election Time: Normative Implica
tions of Temporal Properties of the Electoral Process in the
8 If 10% of Republican voters decided to vote for Democratic candidates,
and if there were no other changes in voter turnout or preferences, the
Republicans’ share of the statewide vote would be reduced from 58%
to 52%.

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United States, 98 Am. Pol. Sci. Rev. 51, 53, and n. 7 (2004);
Engstrom & Kernell, Manufactured Responsiveness: The
Impact of State Electoral Laws on Unified Party Control of
the Presidency and House of Representatives, 1840–1940, 49
Am. J. Pol. Sci. 531, 541 (2005). Like other models that ex
perts use in analyzing vote dilution claims, compliance with
the symmetry standard is measured by extrapolating from a
sample of known data, see, e. g., Thornburg v. Gingles, 478
U. S. 30, 53, and n. 20 (1986) (discussing extreme case analy
sis and bivariate ecological regression analysis). In this liti
gation, the symmetry standard was not simply proposed by
an amicus to this Court, it was also used by the expert for
plaintiffs and the expert for the State in assessing the degree
of partisan bias in Plans 1151C and 1374C. See App. 34–42
(report of Professor Alford); id., at 189–193, 216 (report of
Professor Gaddie).
Because, as noted above, Republicans would have an ad
vantage in a significant majority of seats even if the state
wide vote were equally distributed between Republicans and
Democrats, Plan 1374C constitutes a significant departure
from the symmetry standard. By contrast, based on Profes
sor Gaddie’s evaluation, the Balderas Plan, though slightly
biased in favor of Republicans, provided markedly more eq
uitable opportunities to Republicans and Democrats. For
example, consistent with the symmetry standard, under Plan
1151C the parties were likely to each take 16 congressional
seats if they won 50% of the statewide vote. See App. 216.
Plan 1374C then, clearly has a discriminatory impact on
the opportunities that Democratic citizens have to elect can
didates of their choice. Moreover, this discriminatory effect
cannot be dismissed as de minimis. According to the State’s
expert, if each party receives half the statewide vote, under
Plan 1374C the Republicans would carry 62.5% (20) of the
congressional seats, whereas the Democrats would win 37.5%
(12) of those seats. In other words, at the vote distribution
point where a politically neutral map would result in zero

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differential in the percentage of seats captured by each
party, Plan 1374C is structured to create a 25% differential.
When a redistricting map imposes such a significant disad
vantage on a politically salient group of voters, the State
should shoulder the burden of defending the map. Cf.
Brown v. Thomson, 462 U. S. 835, 842–843 (1983) (holding
that the implementation of a redistricting plan for state leg
islative districts with population deviations over 10% creates
a prima facie case of discrimination under the Equal Protec
tion Clause, thus shifting the burden to the State to defend
the plan); Larios v. Cox, 300 F. Supp. 2d 1320, 1339–1340 (ND
Ga.) (per curiam), summarily aff ’d, 542 U. S. 947 (2004)
(same, but further pointing out that the “ ‘ten percent rule’ ”
is not a safe harbor, and concluding that, under the circum
stances of the case before it, a state legislative districting
plan was unconstitutional even though population deviations
were under 10%). At the very least, once plaintiffs have
established that the legislature’s sole purpose in adopting a
plan was partisan—as plaintiffs have established in this ac
tion, see Part II, supra—such a severe discriminatory effect
should be sufficient to meet any additional burden they have
to demonstrate that the redistricting map accomplishes its
discriminatory purpose.9
9 Justice Kennedy faults proponents of the symmetry standard for not
“providing a standard for deciding how much partisan dominance is too
much,” ante, at 420. But it is this Court, not proponents of the symmetry
standard, that has the judicial obligation to answer the question of how
much unfairness is too much. It would, of course, be an eminently man
ageable standard for the Court to conclude that deviations of over 10%
from symmetry create a prima facie case of an unconstitutional gerryman
der, just as population deviations among districts of more than 10% create
such a prima facie case. Or, the Court could conclude that a significant
departure from symmetry is one relevant factor in analyzing whether,
under the totality of the circumstances, a districting plan is an unconstitu
tional partisan gerrymander. See n. 11, infra. At any rate, proponents
of the symmetry standard have provided a helpful (though certainly not
talismanic) tool in this type of litigation. While I appreciate Justice
Kennedy’s leaving the door open to the use of the standard in future

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The bias in Plan 1374C is most striking with regard to its
effect on the ability of Democratic voters to elect candidates
of their choice, but its discriminatory effect does not end
there. Plan 1374C also lessens the influence Democratic
voters are likely to be able to exert over Republican lawmak
ers, thus further minimizing Democrats’ capacity to play a
meaningful role in the political process.
Even though it “defies political reality to suppose that
members of a losing party have as much political influence
over . . . government as do members of the victorious party,”
Davis v. Bandemer, 478 U. S. 109, 170 (1986) (Powell, J., con
curring in part and dissenting in part), the Court has recog
nized that “the power to influence the political process is not
limited to winning elections,” id., at 132 (plurality opinion);
see also Georgia v. Ashcroft, 539 U. S. 461, 482 (2003). In
assessing whether members of a group whose candidate is
defeated at the polls can nonetheless influence the elected
representative, it is “important to consider ‘the likelihood
that candidates elected without decisive minority support
would be willing to take the minority’s interests into ac
count.’ ” Ibid. (quoting Gingles, 478 U. S., at 100 (O’Connor,
J., concurring in judgment)). One justification for major
ity rule is that elected officials will generally “take the
minority’s interests into account,” in part because the major
ity recognizes that preferences shift and today’s minority
could be tomorrow’s majority. See, e. g., L. Guinier, Tyr
anny of the Majority 77 (1994); J. Ely, Democracy and Dis
trust 84 (1980); cf. Letter from James Madison to Thomas
Jefferson (Oct. 24, 1787), reprinted in 1 Republic of Letters
502 (J. Smith ed. 1995) (arguing that “[t]he great desideratum
in Government is . . . to modify the sovereignty as that it
may be sufficiently neutral between different parts of the
Society” and thus prevent a fixed majority from oppressing
the minority). Indeed, this Court has concluded that our
cases, see ante, at 419–420, I believe it is the role of this Court, not social
scientists, to determine how much partisan dominance is too much.

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system of representative democracy is premised on the as
sumption that elected officials will seek to represent their
constituency as a whole, rather than any dominant faction
within that constituency. See Shaw v. Reno, 509 U. S. 630,
648 (1993).
Plan 1374C undermines this crucial assumption that con
gressional representatives from the majority party (in this
case Republicans) will seek to represent their entire constit
uency. “When a district obviously is created solely to effec
tuate the perceived common interests of one racial group,
elected officials are more likely to believe that their primary
obligation is to represent only the members of that group,
rather than their constituency as a whole.” Ibid. Shaw’s
analysis of representational harms in the racial gerryman
dering context applies with at least as much force in the
partisan gerrymandering context because, in addition to the
possibility that a representative may believe her job is only
to represent the interests of a dominant constituency, a rep
resentative may feel more beholden to the cartographers
who drew her district than to the constituents who live
there. See Vieth, 541 U. S., at 329–331 (Stevens, J., dis
senting). In short, Plan 1374C reduces the likelihood that
Republican representatives elected from gerrymandered dis
tricts will act as vigorous advocates for the needs and inter
ests of Democrats who reside within their districts.
In addition, Plan 1374C further weakens the incentives for
members of the majority party to take the interests of the
minority party into account because it locks in a Republican
congressional majority of 20–22 seats, so long as Republicans
achieve at least 49% of the vote. The result of this lock-in
is that, according to the State’s expert, between 19 and 22 of
these Republican seats are safe seats, meaning seats where
one party has at least a 10% advantage over the other. See
App. 227–228 (expert report of Professor Gaddie). Members
of Congress elected from such safe districts need not worry

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much about the possibility of shifting majorities, so they
have little reason to be responsive to political minorities
within their district.10
In sum, I think it is clear that Plan 1374C has a severe
burden on the capacity of Texas Democrats to influence the
political process. Far from representing an example of “one
of the most significant acts a State can perform to ensure
citizen participation in republican self-governance,” ante, at
416 (opinion of Kennedy, J.), the plan guarantees that the
10 Safe seats may harm the democratic process in other ways as well.
According to one recent article coauthored by a former Chairman of the
Federal Election Commission, electoral competition “plainly has a positive
effect on the interest and participation of voters in the electoral process.”
Potter & Viray, Election Reform: Barriers to Participation, 36 U. Mich.
J. L. Reform 547, 575 (2003) (hereinafter Potter & Viray); see also L. Gui
nier, Tyranny of the Majority 85 (1994). The impact of noncompetitive
elections in depressing voter turnout is especially troubling in light of the
fact that voter participation in the United States lags behind, often well
behind, participation rates in other democratic nations. Potter & Viray
575–576, and n. 200. In addition, the creation of safe seats tends to polar
ize decisionmaking bodies. See, e. g., Clingman v. Beaver, 544 U. S. 581,
620 (2005) (Stevens, J., joined by Ginsburg, J., dissenting) (noting that
safe districts can “increase the bitter partisanship that has already poi
soned some of those [legislative] bodies that once provided inspiring exam
ples of courteous adversary debate and deliberation”); Cox, Partisan Ger
rymandering and Disaggregated Redistricting, 2004 S. Ct. Rev. 409, 430
(arguing that “safe seats produce more polarized representatives because,
by definition, the median voter in a district that is closely divided between
the two major parties is more centrist than the median voter in a district
dominated by one party”); Raviv, Unsafe Harbors: One Person, One Vote
and Partisan Redistricting, 7 U. Pa. J. Const. L. 1001, 1068 (2005) (arguing
that safe districts encourage polarization in decisionmaking bodies because
representatives from those districts have to cater only to voters from one
party). See generally Issacharoff & Karlan, Where to Draw the Line?:
Judicial Review of Political Gerrymanders, 153 U. Pa. L. Rev. 541, 574
(2004) (providing data about the large percentage of safe seats in recent
congressional and state legislative elections, and concluding that “[n]on
competitive elections threaten both the legitimacy and the vitality of dem
ocratic governance”).

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Republican-dominated membership of the Texas congres
sional delegation will remain constant notwithstanding sig
nificant pro-Democratic shifts in public opinion. Moreover,
the harms Plan 1374C imposes on Democrats are not “hypo
thetical” or “counterfactual,” ante, at 420, simply because, in
the 2004 elections, Republicans won a share of seats roughly
proportional to their statewide voting strength. By creat
ing 19–22 safe Republican seats, Plan 1374C has already
harmed Democrats because, as explained above, it signifi
cantly undermines the likelihood that Republican lawmakers
from those districts will be responsive to the interests of
their Democratic constituents. In addition, Democrats will
surely have a more difficult time recruiting strong candi
dates, and mobilizing voters and resources, in these safe Re
publican districts. Thus, appellants have satisfied any req
uisite obligation to demonstrate that they have been harmed
by the adoption of Plan 1374C.
Furthermore, as discussed in Part II, supra, the sole in
tent motivating the Texas Legislature’s decision to replace
Plan 1151C with Plan 1374C was to benefit Republicans and
burden Democrats. Accordingly, in terms of both its intent
and effect, Plan 1374C violates the sovereign’s duty to gov
ern impartially.
“When a State adopts rules governing its election ma
chinery or defining electoral boundaries, those rules
must serve the interests of the entire community. If
they serve no purpose other than to favor one seg
ment—whether racial, ethnic, religious, economic, or po
litical—that may occupy a position of strength at a par
ticular point in time, or to disadvantage a politically
weak segment of the community, they violate the consti
tutional guarantee of equal protection.” Karcher, 462
U. S., at 748 (Stevens, J., concurring) (citation omitted).
Accordingly, even accepting the Court’s view that a gerry
mander is tolerable unless it in fact burdens the minority’s

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representative rights, I would hold that Plan 1374C is
unconstitutional.11
IV
Even if I thought that Plan 1374C were not unconstitu
tional in its entirety, I would hold that the cracking of Dis
trict 24—which, under the Balderas Plan, was a majority
minority district that consistently elected Democratic
Congressman Martin Frost—was unconstitutional. Readily
manageable standards enable us to analyze both the purpose
and the effect of the “granular” decisions that produced the
replacements for District 24. Applying these standards,
which I set forth below, I believe it is clear that the manipu
lation of this district for purely partisan gain violated the
First and Fourteenth Amendments.
The same constitutional principles discussed above con
cerning the sovereign’s duty to govern impartially inform
the proper analysis for claims that a particular district is an
unconstitutional partisan gerrymander. We have on several
occasions recognized that a multimember district is subject
to challenge under the Fourteenth Amendment if it operates
“ ‘to minimize or cancel out the voting strength of racial or
11 In this litigation expert testimony provided the principal evidence
about the effects of the plan that satisfy the test Justice Kennedy would
impose. In my judgment, however, most statewide challenges to an al
leged gerrymander should be evaluated primarily by examining these ob
jective factors: (1) the number of people who have been moved from one
district to another, (2) the number of districts that are less compact than
their predecessors, (3) the degree to which the new plan departs from
other neutral districting criteria, including respect for communities of in
terest and compliance with the Voting Rights Act, (4) the number of dis
tricts that have been cracked in a manner that weakens an opposition
party incumbent, (5) the number of districts that include two incumbents
from the opposite party, (6) whether the adoption of the plan gave the
opposition party, and other groups, a fair opportunity to have input in the
redistricting process, (7) the number of seats that are likely to be safe
seats for the dominant party, and (8) the size of the departure in the new
plan from the symmetry standard.

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political elements of the voting population.’ ” E. g., Gaffney
v. Cummings, 412 U. S. 735, 751 (1973) (emphasis added);
Burns v. Richardson, 384 U. S. 73, 88 (1966). There is no
constitutionally relevant distinction between the harms in
flicted by single-member district gerrymanders that mini
mize or cancel out the voting strength of a political element
of the population and the same harms inflicted by multimem
ber districts. In both situations, the State has interfered
with the voter’s constitutional right to “engage in association
for the advancement of beliefs and ideas,” NAACP v. Ala
bama ex rel. Patterson, 357 U. S. 449, 460 (1958).
I recognize that legislatures will always be aware of poli
tics and that we must tolerate some consideration of political
goals in the redistricting process. See Cousins v. City
Council of Chicago, 466 F. 2d 830, 847 (CA7 1972) (Stevens,
J., dissenting). However, I think it is equally clear that,
when a plaintiff can prove that a legislature’s predominant
motive in drawing a particular district was to disadvantage
a politically salient group, and that the decision has the in
tended effect, the plaintiff ’s constitutional rights have been
violated. See id., at 859–860. Indeed, in Vieth, five Mem
bers of this Court explicitly recognized that extreme par
tisan gerrymandering violates the Constitution. See 541
U. S., at 307, 312–316 (Kennedy, J., concurring in judgment);
id., at 317–318 (Stevens, J., dissenting); id., at 343, 347–352
(Souter, J., joined by Ginsburg, J., dissenting); id., at 356–
357, 366–367 (Breyer, J., dissenting). The other four Jus
tices in Vieth stated that they did not disagree with that
conclusion. See id., at 292 (plurality opinion). The Vieth
plurality nonetheless determined that there were no judi
cially manageable standards to assess partisan gerrymander
ing claims. Id., at 305–306. However, the following test,
which shares some features of the burden-shifting standard
for assessing unconstitutional partisan gerrymandering pro
posed by Justice Souter’s opinion in Vieth, see id., at 348–
351, would provide a remedy for at least the most blatant

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unconstitutional partisan gerrymanders and would also be
eminently manageable.
First, to have standing to challenge a district as an uncon
stitutional partisan gerrymander, a plaintiff would have to
prove that he is either a candidate or a voter who resided in
a district that was changed by a new districting plan. See
id., at 327–328 (Stevens, J., dissenting) (discussing United
States v. Hays, 515 U. S. 737 (1995)). See also 541 U. S., at
347–348 (Souter, J., joined by Ginsburg, J., dissenting) (cit
ing Hays). A plaintiff with standing would then be required
to prove both improper purpose and effect.
With respect to the “purpose” portion of the inquiry, I
would apply the standard fashioned by the Court in its racial
gerrymandering cases. Under the Court’s racial gerryman
dering jurisprudence, judges must analyze whether plaintiffs
have proved that race was the predominant factor motivat
ing a districting decision such that other, race-neutral dis
tricting principles were subordinated to racial considera
tions. If so, strict scrutiny applies, see, e. g., Vera, 517 U. S.,
at 958–959 (plurality opinion), and the State must justify its
districting decision by establishing that it was narrowly tai
lored to serve a compelling state interest, such as compliance
with § 2 of the Voting Rights Act, see King v. Illinois Bd. of
Elections, 979 F. Supp. 619 (ND Ill. 1997), summarily aff ’d,
522 U. S. 1087 (1998); Vera, 517 U. S., at 994 (O’Connor,
J., concurring).12 However, strict scrutiny does not apply
merely because race was one motivating factor behind the
drawing of a majority-minority district. Id., at 958–959
(plurality opinion); see also Easley v. Cromartie, 532 U. S.
234, 241 (2001). Applying these standards to the political
gerrymandering context, I would hold that, if a plaintiff car
12 Justice Breyer has authorized me to state that he agrees with Jus
tice Scalia that compliance with § 5 of the Voting Rights Act is also a
compelling state interest. See post, at 518 (opinion concurring in judg
ment in part and dissenting in part). I, too, agree with Justice Scalia
on this point.

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ried her burden of demonstrating that redistricters subordi
nated neutral districting principles to political considerations
and that their predominant motive was to maximize one par
ty’s power, she would satisfy the intent prong of the constitu
tional inquiry.13 Cf. Vieth, 541 U. S., at 349–350 (Souter, J.,
joined by Ginsburg, J., dissenting) (discussing the impor
tance of a district’s departures from traditional districting
principles in determining whether the district is an unconsti
tutional gerrymander).
With respect to the effects inquiry, a plaintiff would be
required to demonstrate the following three facts: (1) her
candidate of choice won election under the old plan; (2) her
residence is now in a district that is a safe seat for the oppo
site party; and (3) her new district is less compact than the
old district. The first two prongs of this effects inquiry
would be designed to measure whether or not the plaintiff
has been harmed, whereas the third prong would be relevant
because the shape of the gerrymander has always provided
crucial evidence of its character, see Karcher, 462 U. S., at
754–758, 762–763 (Stevens, J., concurring); see also Vieth,
541 U. S., at 348 (Souter, J., joined by Ginsburg, J., dissent
ing) (noting that compactness is a traditional districting prin
ciple, which “can be measured quantitatively”). Moreover,
a safe harbor for more compact districts would allow a newly
elected majority to eliminate a prior partisan gerrymander
without fear of liability or even the need to devote resources
to litigating whether or not the legislature had acted with an
impermissible intent.
13 If, on the other hand, the State could demonstrate, for example, that
the new district was part of a statewide scheme designed to apportion
power fairly among politically salient groups, or to enhance the political
power of an underrepresented community of interest (such as residents of
an economically distressed region), the State would avoid liability even if
the results of such statewide districting had predictably partisan effects.
See generally Vieth, 541 U. S., at 351–352 (Souter, J., joined by Gins
burg, J., dissenting) (discussing legitimate interests that a State could
posit as a defense to a prima facie case of partisan gerrymandering).

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If a plaintiff with standing could meet the intent and ef
fects prong of the test outlined above, that plaintiff would
clearly have demonstrated a violation of her constitutional
rights. Moreover, I do not think there can be any colorable
claim that this test would not be judicially manageable.
Applying this test to the facts of these cases, I think plain
tiffs in new Districts 6, 24, 26, and 32—four of the districts
in Plan 1374C that replaced parts of Balderas District 24—
can demonstrate that their constitutional rights were vio
lated by the cracking of Balderas District 24. First, I
assume that there are plaintiffs who reside in Districts 6,
24, 26, and 32, and whose homes were previously located
in Balderas District 24.14 Accordingly, I assume that there
are plaintiffs who have standing to challenge the creation
of these districts.
Second, plaintiffs could easily satisfy their burden of prov
ing predominant partisan purpose. Indeed, in this litiga
tion, the State has acknowledged that its predominant moti
vation for cracking District 24 was to achieve partisan gain.
See State Post-Trial Brief 51–52 (noting that, in spite of con
cerns that the cracking of District 24 could lead to Voting
Rights Act liability, “[t]he Legislature . . . chose to pursue
a political goal of unseating Congressman Frost instead of
following a course that might have lowered risks [of such
liability]”).
The District Court agreed with the State’s analysis on this
issue. In the District Court, plaintiffs claimed that the cre
ation of District 26 violated the Equal Protection Clause be
cause the decision to create District 26 was motivated by
unconstitutional racial discrimination against black voters.
14 This assumption is justified based on counsel’s undisputed representa
tions at oral argument. See Tr. of Oral Arg. 35. However, if there were
any genuine dispute about whether there are plaintiffs whose residences
were previously located in Balderas District 24, but which are now incor
porated into Districts 6, 24, 26, and 32, a remand would be appropriate to
allow the District Court to address this issue.

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The District Court rejected this argument, concluding that
the State’s decision to crack Balderas District 24 was driven
not by racial prejudice, but rather by the political desire to
maximize Republican advantage and to “remove Congress
man Frost,” which required that Frost “lose a large portion
of his Democratic constituency, many of whom lived in a
predominately Black area of Tarrant County.” Session, 298
F. Supp. 2d, at 471.
That an impermissible, predominantly partisan, purpose
motivated the cracking of former District 24 is further dem
onstrated by the fact that, in my judgment, this cracking
caused Plan 1374C to violate § 5 of the Voting Rights Act, 42
U. S. C. § 1973c. The State’s willingness to adopt a plan that
violated its legal obligations under the Voting Rights Act,
combined with the other indicia of partisan intent in this
litigation, is compelling evidence that politics was not simply
one factor in the cracking of District 24, but rather that it
was an impermissible, predominant factor.
Section 5 of the Voting Rights Act “was intended ‘to insure
that [the gains thus far achieved in minority political partici
pation] shall not be destroyed through new [discriminatory]
procedures and techniques.’ ” Beer v. United States, 425
U. S. 130, 140–141 (1976) (quoting S. Rep. No. 94–295, p. 19
(1975); alteration in Beer). To effectuate this goal, § 5 pre
vents covered jurisdictions, such as Texas, from making
changes to their voting procedures “that would lead to a ret
rogression in the position of racial minorities with respect to
their effective exercise of the electoral franchise.” Georgia,
539 U. S., at 477 (internal quotation marks omitted). In
other words, during the redistricting process, covered juris
dictions may not “leave minority voters with less chance to
be effective in electing preferred candidates than they were”
under the prior districting plan. See id., at 494 (Souter, J.,
dissenting). By cracking Balderas District 24, and by not
offsetting the loss in black voters’ ability to elect preferred

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candidates elsewhere, Plan 1374C resulted in impermissible
retrogression.
Under the Balderas Plan, black Americans constituted a
majority of Democratic primary voters in District 24. Ac
cording to the unanimous report authored by staff attorneys
in the Voting Section of the Department of Justice, black
voters in District 24 generally voted cohesively, and thus
had the ability to elect their candidate of choice in the Demo
cratic primary. Section 5 Recommendation Memorandum
33 (Dec. 12, 2003), available at http://www.washingtonpost.
com/wp-srv/nation/documents/texasDOJmemo.pdf (as visited
June 21, 2006, and available in Clerk of Court’s case file).
Moreover, the black community’s candidates of choice could
consistently attract sufficient crossover voting from non
blacks to win the general election, even though blacks did
not constitute a majority of voters in the general election.
Id., at 33–34. Representative Frost, who is white, was
clearly the candidate of choice of the black community in Dis
trict 24, based on election returns, testimony of community
leaders, and “ ‘scorecards’ ” he received from groups dedi
cated to advancing the interests of African-Americans. See
id., at 35.
As noted above, in Plan 1374C, “the minority community
in [Balderas District] 24 [was] splintered and submerged into
majority Anglo districts in the Dallas-Fort Worth area.”
Id., at 67. By dismantling one district where blacks had the
ability to elect candidates of their choice,15 and by not offset
15 In the decision below, the District Court concluded that black voters
did not in fact “control” electoral outcomes in District 24. See Session v.
Perry, 298 F. Supp. 2d 451, 498 (2004). Even assuming, as Justice Ken
nedy concludes, see ante, at 444–446, that the District Court did not com
mit reversible error in its analysis of this issue, the lack of “control” might
be relevant in analyzing plaintiffs’ vote dilution claim under § 2, but it
is not relevant in evaluating whether Plan 1374C is retrogressive under
§ 5. It is indisputable that, at the very least, Balderas District 24 was a
strong influence district for black voters, that is, a district where voters
of color can “play a substantial, if not decisive, role in the electoral proc

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ting this loss of a district with another district where black
voters had a similar opportunity, Plan 1374C was retrogres
sive, in violation of § 5 of the Voting Rights Act. See id., at
31, 67–69.
Notwithstanding the unanimous opinion of the staff attor
neys in the Voting Section of the Justice Department that
Plan 1374C was retrogressive and that the Attorney General
should have interposed an objection, the Attorney General
elected to preclear the map, thus allowing it to take effect.
We have held that, under the statutory scheme, voters may
not directly challenge the Attorney General’s decision to pre
clear a redistricting plan, see Morris v. Gressette, 432 U. S.
491 (1977), which means that the Attorney General’s vigilant
enforcement of the Act is critical, and which also means that
plaintiffs could not bring a § 5 challenge as part of this lit
igation.16 However, judges are frequently called upon to
consider whether a redistricting plan violates § 5, because
a covered jurisdiction has the option of seeking to achieve
preclearance by either submitting its plan to the Attorney
General or filing a declaratory judgment action in the Dis
trict Court for the District of Columbia, whose judgment is
ess.” Georgia v. Ashcroft, 539 U. S. 461, 482 (2003). Accordingly, by dis
mantling Balderas District 24, and by failing to create a strong influence
district elsewhere, Plan 1374C was retrogressive. See 539 U. S., at 482
(explaining that, in deciding whether a plan is retrogressive, “a court must
examine whether a new plan adds or subtracts ‘influence districts’ ”).
16 As Justice Kennedy explains, see ante, at 443–447, plaintiffs did,
however, challenge District 24 under § 2. I am in substantial agreement
with Justice Souter’s discussion of this issue. See post, at 485–490
(opinion concurring in part and dissenting in part). Specifically, I agree
with Justice Souter that the “50% rule,” which finds no support in the
text, history, or purposes of § 2, is not a proper part of the statutory vote
dilution inquiry. For the reasons stated in my analysis of the “unique
question of law . . . raised in this appeal,” supra, at 456, and in this part
of my opinion, however, it is so clear that the cracking of District 24 cre
ated an unconstitutional gerrymander that I find it unnecessary to address
the statutory issue separately.

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subject to review by this Court, see, e. g., Georgia, 539 U. S.
461. Accordingly, we have the tools to analyze whether a
redistricting plan is retrogressive.
Even though the § 5 issue is not directly before this Court,
for the reasons stated above, I believe that the cracking of
District 24 caused Plan 1374C to be retrogressive. And the
fact that the legislature promulgated a retrogressive plan
is relevant because it provides additional evidence that the
legislature acted with a predominantly partisan purpose.
Complying with § 5 is a neutral districting principle, and the
legislature’s promulgation of a retrogressive redistricting
plan buttresses my conclusion that the “legislature subordi
nated traditional [politically] neutral districting principles
. . . to [political] considerations.” Miller v. Johnson, 515
U. S. 900, 916 (1995). This evidence is particularly compel
ling in light of the State’s acknowledgment that “[t]he Legis
lature . . . chose to pursue a political goal of unseating Con
gressman Frost instead of following a course that might have
lowered risks in the preclearance process.” State Post-
Trial Brief 52 (citing, inter alia, trial testimony of state
legislators).
In sum, the record in this litigation makes clear that the
predominant motive underlying the fragmentation of Bal
deras District 24 was to maximize Republicans’ electoral
opportunities and ensure that Congressman Frost was
defeated.
Turning now to the effects test I have proposed, plaintiffs
in new Districts 6, 24, 26, and 32 could easily meet the three
parts of that test because: (1) under the Balderas Plan, they
lived in District 24 and their candidate of choice (Frost) was
the winning candidate; (2) under Plan 1374C, they have been
placed in districts that are safe seats for the Republican
party, see App. 106 (showing that the Democratic share of
the two-party vote in statewide elections from 1996 to 2002
was 40% or less in Districts 6, 24, 26, and 32); and (3) their

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new districts are less compact than Balderas District 24, see
App. 319–320 (compactness scores for districts under the
Balderas Plan and Plan 1374C).17
Justice Kennedy rejects my proposed effects test, as ap
plied in these cases, because in his view Balderas District
24 lacks “any special claim to fairness,” ante, at 446. But
my analysis in no way depends on the proposition that Bal
deras District 24 was fair. The district was more compact
than four of the districts that replaced it, and, as explained
above, compactness serves important values in the district
ing process. This is why, in my view, a State that creates
more compact districts should enjoy a safe harbor from parti
san gerrymandering claims. However, the mere fact that a
prior district was unfair should surely not provide a safe har
bor for the creation of an even more unfair district. Con
versely, a State may of course create less compact districts
without violating the Constitution so long as its purpose is
not to disadvantage a politically disfavored group. See
supra, at 477–478, and n. 14. The reason I focus on Bal
deras District 24 is not because the district was fair, but
because the prior district provides a clear benchmark in ana
lyzing whether plaintiffs have been harmed.
In sum, applying the judicially manageable test set forth in
this Part of my opinion reveals that the cracking of Balderas
District 24 created several unconstitutional partisan gerry
manders. Even if I believed that Plan 1374C were not in
valid in its entirety, I would reverse the judgment below
with regard to Districts 6, 24, 26, and 32.
* * *
17 Because new District 12, another district that covers portions of for
mer District 24, is more compact than Balderas District 24, voters in new
District 12 who previously resided in Balderas District 24 would not be
able to bring a successful partisan gerrymandering claim under my pro
posed test, even though new District 12 is also a safe Republican district.
See App. 106, 319–320.

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Opinion of Souter, J.
For the foregoing reasons, although I concur with the ma
jority’s decision to invalidate District 23 under § 2 of the Vot
ing Rights Act, I respectfully dissent from the Court’s deci
sion to affirm the judgment below with respect to plaintiffs’
partisan gerrymandering claim. I would reverse with re
spect to the plan as a whole, and also, more specifically, with
respect to Districts 6, 24, 26, and 32.
Justice Souter, with whom Justice Ginsburg joins,
concurring in part and dissenting in part.
I join Part II–D of the principal opinion, rejecting the
one-person, one-vote challenge to Plan 1374C based simply
on its mid-decade timing, and I also join Part II–A, in which
the Court preserves the principle that partisan gerryman
dering can be recognized as a violation of equal protection,
see Vieth v. Jubelirer, 541 U. S. 267, 306 (2004) (Kennedy,
J., concurring in judgment); id., at 317 (Stevens, J., dissent
ing); id., at 346 (Souter, J., dissenting); id., at 355 (Breyer,
J., dissenting). I see nothing to be gained by working
through these cases on the standard I would have applied in
Vieth, supra, at 346–355 (dissenting opinion), because here
as in Vieth we have no majority for any single criterion of
impermissible gerrymander (and none for a conclusion that
Plan 1374C is unconstitutional across the board). I there
fore treat the broad issue of gerrymander much as the sub
ject of an improvident grant of certiorari, and add only two
thoughts for the future: that I do not share Justice Ken
nedy’s seemingly flat rejection of any test of gerrymander
turning on the process followed in redistricting, see ante, at
416–420 (principal opinion), nor do I rule out the utility of a
criterion of symmetry as a test, see, e. g., King & Browning,
Democratic Representation and Partisan Bias in Congres
sional Elections, 81 Am. Pol. Sci. Rev. 1251 (1987). Interest
in exploring this notion is evident, see ante, at 419–420

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(principal opinion); ante, at 465–468 (Stevens, J., concurring
in part and dissenting in part); post, at 491–492 (Breyer, J.,
concurring in part and dissenting in part). Perhaps further
attention could be devoted to the administrability of such a
criterion at all levels of redistricting and its review.
I join Part III of the principal opinion, in which the Court
holds that Plan 1374C’s District 23 violates § 2 of the Vot
ing Rights Act of 1965, 42 U. S. C. § 1973, in diluting mi
nority voting strength. But I respectfully dissent from
Part IV, in which a plurality upholds the District Court’s
rejection of the claim that Plan 1374C violated § 2 in cracking
the black population in the prior District 24 and submerging
its fragments in new Districts 6, 12, 24, 26, and 32. On the
contrary, I would vacate the judgment and remand for fur
ther consideration.
The District Court made a threshold determination rest
ing reasonably on precedent of this Court and on a clear rule
laid down by the Fifth Circuit, see Valdespino v. Alamo
Heights Independent School Dist., 168 F. 3d 848, 852–853
(1999), cert. denied, 528 U. S. 1114 (2000): the first condition
for making out a § 2 violation, as set out in Thornburg v.
Gingles, 478 U. S. 30 (1986), requires “the minority group . . .
to demonstrate that it is sufficiently large and geographically
compact to constitute a majority in a single-member dis
trict,” id., at 50, (here, the old District 24) before a dilution
claim can be recognized under § 2.1 Although both the plu
rality today and our own prior cases have sidestepped the
question whether a statutory dilution claim can prevail with
out the possibility of a district percentage of minority voters
above 50%, see ante, at 443; Johnson v. De Grandy, 512 U. S.
1 In a subsequent case, however, we did not state the first Gingles condi
tion in terms of an absolute majority. See Johnson v. De Grandy, 512
U. S. 997, 1008 (1994) (“[T]he first Gingles condition requires the possibil
ity of creating more than the existing number of reasonably compact dis
tricts with a sufficiently large minority population to elect candidates of
its choice”).

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997, 1008–1009 (1994); Voinovich v. Quilter, 507 U. S. 146,
154 (1993); Growe v. Emison, 507 U. S. 25, 41, n. 5 (1993);
Gingles, supra, at 46, n. 12, the day has come to answer it.
Chief among the reasons that the time has come is the
holding in Georgia v. Ashcroft, 539 U. S. 461 (2003), that re
placement of a majority-minority district by a coalition dis
trict with minority voters making up fewer than half can
survive the prohibition of retrogression under § 5 of the Vot
ing Rights Act, 42 U. S. C. § 1973c, enforced through the pre
clearance requirement, Georgia, 539 U. S., at 482–483. At
least under § 5, a coalition district can take on the signifi
cance previously accorded to one with a majority-minority
voting population. Thus, despite the independence of §§ 2
and 5, id., at 477–479, there is reason to think that the integ
rity of the minority voting population in a coalition district
should be protected much as a majority-minority bloc would
be. While protection should begin through the preclearance
process,2 in jurisdictions where that is required, if that proc
ess fails a minority voter has no remedy under § 5 because
the State and the Attorney General (or the District Court
for the District of Columbia) are the only participants in pre
clearance, see 42 U. S. C. § 1973c. And, of course, vast areas
of the country are not covered by § 5. Unless a minority
voter is to be left with no recourse whatsoever, then, relief
under § 2 must be possible, as by definition it would not be
if a numerical majority of minority voters in a reconstituted
or putative district is a necessary condition. I would there
fore hold that a minority of 50% or less of the voting popula
tion might suffice at the Gingles gatekeeping stage. To
have a clear-edged rule, I would hold it sufficient satisfaction
of the first gatekeeping condition to show that minority vot
ers in a reconstituted or putative district constitute a major
2 Like Justice Stevens, I agree with Justice Scalia that compliance
with § 5 is a compelling state interest. See ante, at 475, n. 12 (Stevens,
J., concurring in part and dissenting in part); post, at 518–519 (Scalia, J.,
concurring in judgment in part and dissenting in part).

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ity of those voting in the primary of the dominant party, that
is, the party tending to win in the general election.3
This rule makes sense in light of the explanation we gave
in Gingles for the first condition for entertaining a claim for
breach of the § 2 guarantee of racially equal opportunity “to
elect representatives of . . . choice,” 42 U. S. C. § 1973: “The
reason that a minority group making such a challenge must
show, as a threshold matter, that it is sufficiently large . . . is
this: Unless 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 (emphasis de
leted); see also id., at 90, n. 1 (O’Connor, J., concurring in
judgment) (“[I]f a minority group that is not large enough to
constitute a voting majority in a single-member district can
show that white support would probably be forthcoming in
some such district to an extent that would 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”). Hence, we empha
sized that an analysis under § 2 of the political process should
be “ ‘functional.’ ” Id., at 48, n. 15 (majority opinion); see
also Voinovich, supra, at 158 (“[T]he Gingles factors cannot
be applied mechanically and without regard to the nature of
the claim”). So it is not surprising that we have looked to
political-primary data in considering the second and third
Gingles conditions, to see whether there is racial bloc voting.
3 I recognize that a minority group might satisfy the § 2 “ability to elect”
requirement in other ways, and I do not mean to rule out other circum
stances in which a coalition district might be required by § 2. A minority
group slightly less than 50% of the electorate in nonpartisan elections for
a local school board might, for example, show that it can elect its preferred
candidates owing to consistent crossover support from members of other
groups. Cf. Valdespino v. Alamo Heights Independent School Dist., 168
F. 3d 848, 850–851 (CA5 1999), cert. denied, 528 U. S. 1114 (2000).

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See, e. g., Abrams v. Johnson, 521 U. S. 74, 91–92 (1997); Gin
gles, supra, at 52–54, 59–60.
The pertinence of minority voters’ role in a primary is ob
vious: a dominant party’s primary can determine the repre
sentative ultimately elected, as we recognized years ago in
evaluating the constitutional importance of primary elec
tions. See United States v. Classic, 313 U. S. 299, 318–319
(1941) (“Where the state law has made the primary an inte
gral part of the procedure of choice, or where in fact the
primary effectively controls the choice, the right of the elec
tor to have his ballot counted at the primary is likewise in
cluded in the right protected by Article I, § 2. . . . Here, . . .
the right to choose a representative is in fact controlled by
the primary because, as is alleged in the indictment, the
choice of candidates at the Democratic primary determines
the choice of the elected representative”); id., at 320 (“[A]
primary election which involves a necessary step in the
choice of candidates for election as representatives in Con
gress, and which in the circumstances of this case controls
that choice, is an election within the meaning of the constitu
tional provision”); Smith v. Allwright, 321 U. S. 649, 660
(1944) (noting “[t]he fusing by the Classic case of the primary
and general elections into a single instrumentality for choice
of officers”); id., at 661–662 (“It may now be taken as a postu
late that the right to vote in such a primary for the nomina
tion of candidates without discrimination by the State, like
the right to vote in a general election, is a right secured by
the Constitution. . . . Under our Constitution the great privi
lege of the ballot may not be denied a man by the State
because of his color”).4 These conclusions of our predeces
4 Cf. California Democratic Party v. Jones, 530 U. S. 567, 575 (2000) (“In
no area is the political association’s right to exclude more important than
in the process of selecting its nominee. That process often determines
the party’s positions on the most significant public policy issues of the day,
and even when those positions are predetermined it is the nominee who

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sors fit with recent scholarship showing that electoral suc
cess by minorities is adequately predictable by taking ac
count of primaries as well as elections, among other things.
See Grofman, Handley, & Lublin, Drawing Effective Minor
ity Districts: A Conceptual Framework and Some Empirical
Evidence, 79 N. C. L. Rev. 1383 (2000–2001).5
I would accordingly not reject this § 2 claim at step one of
Gingles, nor on this record would I dismiss it by jumping
to the ultimate § 2 issue to be decided on a totality of the
circumstances, see De Grandy, 512 U. S., at 1009–1022, and
determine that the black plaintiffs cannot show that sub
merging them in the five new districts violated their right
to equal opportunity to participate in the political process
and elect candidates of their choice. The plurality, on the
contrary, is willing to accept the conclusion that the minority
voters lost nothing cognizable under § 2 because they could
not show the degree of control that guaranteed a candidate
of their choice in the old District 24. See ante, at 443–446.
The plurality accepts this conclusion by placing great weight
on the fact that Martin Frost, the perennially successful con
gressional candidate in District 24, was white. See, e. g.,
ante, at 444–445 (no clear error in District Court’s findings
that “no Black candidate has ever filed in a Democratic pri
mary against Frost,” Session v. Perry, 298 F. Supp. 2d 451,
484 (ED Tex. 2004) (per curiam), and “[w]e have no measure
of what Anglo turnout would be in a Democratic primary if
Frost were opposed by a Black candidate,” ibid.); ante, at
445 (no clear error in District Court’s reliance on testimony
of Congresswoman Eddie Bernice Johnson that “District 24
becomes the party’s ambassador to the general electorate in winning it
over to the party’s views”).
5 One must be careful about what such electoral success ostensibly
shows; if the primary choices are constrained, say, by party rules, the
minority voters’ choice in the primary may not be truly their candidate of
choice, see Note, Gingles In Limbo: Coalitional Districts, Party Primaries
and Manageable Vote Dilution Claims, 80 N. Y. U. L. Rev. 312 (2005).

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was drawn for an Anglo Democrat (Martin Frost, in particu
lar) in 1991”).
There are at least two responses. First, “[u]nder § 2, it is
the status of the candidate as the chosen representative of a
particular racial group, not the race of the candidate, that is
important.” Gingles, supra, at 68 (emphasis deleted). Sec
ond, Frost was convincingly shown to have been the “chosen
representative” of black voters in old District 24. In the
absence of a black-white primary contest, the unchallenged
evidence is that black voters dominated a primary that con
sistently nominated the same and ultimately successful can
didate; it takes more than speculation to rebut the demon
stration that Frost was the candidate of choice of the black
voters.6 There is no indication that party rules or any other
device rigged the primary ballot so as to bar any aspirants
the minority voters would have preferred, see n. 5, supra,
and the uncontroverted and overwhelming evidence is that
Frost was strongly supported by minority voters after more
than two decades of sedulously considering minority inter
ests, App. 107 (Frost’s rating of 94% on his voting record
from the National Association for the Advancement of Col
ored People exceeded the scores of all other members of the
Texas congressional delegation, including black and Hispanic
members of both major parties); id., at 218–219 (testimony
by State’s political-science expert that Frost is the African-
Americans’ candidate of choice); id., at 239 (testimony by
Ron Kirk, an African-American former mayor of Dallas and
U. S. Senate candidate, that Frost “has gained a very strong
base of support among African-American . . . voters because
of his strong voting records [in numerous areas]” and has
“an incredible following and amount of respect among the
African-American community”); id., at 240–241 (Kirk’s testi
6 Judge Ward properly noted that the fact that Frost has gone unchal
lenged may “reflect favorably on his record” of responding to the concerns
of minorities in the district. See Session v. Perry, 298 F. Supp. 2d 451,
530 (ED Tex. 2004) (opinion concurring in part and dissenting in part).

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mony that Frost has never had a contested primary because
he is beloved by the African-American community, and that
a black candidate, possibly including himself, could not better
Frost in a primary because of his strong rapport with the
black community); id., at 242–243 (testimony by county pre
cinct administrator that Frost has been the favored candi
date of the African-American community and there have
been no primary challenges to him because he “serves
[African-American] interests”).7
It is not that I would or could decide at this point whether
the elimination of the prior district and composition of the
new one violates § 2. The other Gingles gatekeeping rules
have to be considered, with particular attention to the third,
majority bloc voting, see 478 U. S., at 51, since a claim to a
coalition district is involved.8 And after that would come
the ultimate analysis of the totality of circumstances. See
De Grandy, supra, at 1009–1022.
I would go no further here than to hold that the enquiry
should not be truncated by or conducted in light of the Fifth
7 In any event, although a history or prophecy of success in electing
candidates of choice is a powerful touchstone of § 2 liability when minority
populations are cracked or packed, electoral success is not the only mani
festation of equal opportunity to participate in the political process, see
De Grandy, 512 U. S., at 1014, n. 11. The diminution of that opportunity
by taking minority voters who previously dominated the dominant party’s
primary and submerging them in a new district is not readily discounted
by speculating on the effects of a black-white primary contest in the old
district.
8 The way this third condition is understood when a claim of a putative
coalition district is made will have implications for the identification of
candidate of choice under the first Gingles condition. Suffice it to say
here that the criteria may not be the same when dealing with coalition
districts as in cases of districts with majority-minority populations. All
aspects of our established analysis for majority-minority districts in Gin
gles and its progeny may have to be rethought in analyzing ostensible
coalition districts.

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Circuit’s 50% rule,9 or by the candidate-of-choice analysis
just rejected. I would return the § 2 claim on old District
24 to the District Court, which has already labored so might
ily on these cases. All the members of the three-judge court
would be free to look again untethered by the 50% barrier,
and Judge Ward, in particular, would have the opportunity
to develop his reasons unconstrained by the Circuit’s 50%
rule, which he rightly took to limit his consideration of the
claim, see Session, 298 F. Supp. 2d, at 528–531 (opinion con
curring in part and dissenting in part).
Justice Breyer, concurring in part and dissenting in
part.
I join Parts II–A and III of the Court’s opinion. I also
join Parts I and II of Justice Stevens’ opinion concurring
in part and dissenting in part.
For one thing, the timing of the redistricting (between
census periods), the radical departure from traditional
boundary-drawing criteria, and the other evidence to which
Justice Stevens refers in Parts I and II of his opinion
make clear that a “desire to maximize partisan advantage”
was the “sole purpose behind the decision to promulgate
Plan 1374C.” Ante, at 458. Compare, e. g., App. 176–178;
ante, at 452–455, 458–459 (opinion of Stevens, J.), with
Vieth v. Jubelirer, 541 U. S. 267, 366–367 (2004) (Breyer,
J., dissenting).
For another thing, the evidence to which Justice Ste
vens refers in Part III of his opinion demonstrates that the
9 Notably, under the Texas Legislature’s Plan 1374C, there are three
undisputed districts where African-Americans tend to elect their candi
dates of choice. African-Americans compose at most a citizen voting-age
majority (50.6%) in one of the three, District 30, see Session, supra, at
515; even there, the State’s expert pegged the percentage at 48.6%, App.
185–186. In any event, the others, Districts 9 and 18, are coalition dis
tricts, with African-American citizen voting-age populations of 46.9% and
48.6% respectively. Id., at 184–185.

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plan’s effort “to maximize partisan advantage,” ante, at 458,
encompasses an effort not only to exaggerate the favored
party’s electoral majority but also to produce a majority of
congressional representatives even if the favored party re
ceives only a minority of popular votes. Compare ante, at
465–468 (opinion of Stevens, J.), App. 55 (plaintiffs’ expert),
and id., at 216 (State’s expert), with Vieth, supra, at 360
(Breyer, J., dissenting).
Finally, because the plan entrenches the Republican Party,
the State cannot successfully defend it as an effort simply to
neutralize the Democratic Party’s previous political gerry
mander. Nor has the State tried to justify the plan on non
partisan grounds, either as an effort to achieve legislative
stability by avoiding legislative exaggeration of small shifts
in party preferences, see Vieth, 541 U. S., at 359 (same), or
in any other way.
In sum, “ the risk of entrenchment is demonstrated, ”
“partisan considerations [have] render[ed] the traditional
district-drawing compromises irrelevant,” and “no justifica
tion other than party advantage can be found.” Id., at 367
(same). The record reveals a plan that overwhelmingly re
lies upon the unjustified use of purely partisan line-drawing
considerations and which will likely have seriously harmful
electoral consequences. Ibid. For these reasons, I believe
the plan in its entirety violates the Equal Protection Clause.
Chief Justice Roberts, with whom Justice Alito
joins, concurring in part, concurring in the judgment in part,
and dissenting in part.
I join Parts I and IV of the plurality opinion. With re
gard to Part II, I agree with the determination that appel
lants have not provided “a reliable standard for identifying
unconstitutional political gerrymanders.” Ante, at 423.
The question whether any such standard exists—that is,
whether a challenge to a political gerrymander presents a
justiciable case or controversy—has not been argued in these
cases. I therefore take no position on that question, which

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has divided the Court, see Vieth v. Jubelirer, 541 U. S. 267
(2004), and I join the Court’s disposition in Part II without
specifying whether appellants have failed to state a claim
on which relief can be granted, or have failed to present a
justiciable controversy.
I must, however, dissent from Part III of the Court’s opin
ion. According to the District Court’s factual findings, the
State’s drawing of district lines in south and west Texas
caused the area to move from five out of seven effective La
tino opportunity congressional districts, with an additional
district “moving” in that direction, to six out of seven effec
tive Latino opportunity districts. See Session v. Perry, 298
F. Supp. 2d 451, 489, 503–504 (ED Tex. 2004) (per curiam).
The end result is that while Latinos make up 58% of the
citizen voting-age population in the area, they control 85%
(six of seven) of the districts under the State’s plan.
In the face of these findings, the majority nonetheless con
cludes that the State’s plan somehow dilutes the voting
strength of Latinos in violation of § 2 of the Voting Rights
Act of 1965. The majority reaches its surprising result be
cause it finds that Latino voters in one of the State’s Latino
opportunity districts—District 25—are insufficiently com
pact, in that they consist of two different groups, one from
around the Rio Grande and another from around Austin.
According to the majority, this may make it more difficult
for certain Latino-preferred candidates to be elected from
that district—even though Latino voters make up 55% of the
citizen voting-age population in the district and vote as a
bloc. Id., at 492, n. 126, 503. The majority prefers old Dis
trict 23, despite the District Court determination that new
District 25 is “a more effective Latino opportunity district
than Congressional District 23 had been.” Id., at 503; see
id., at 489, 498–499. The District Court based that determi
nation on a careful examination of regression analysis show
ing that “the Hispanic-preferred candidate [would win] every
primary and general election examined in District 25,” id.,
at 503 (emphasis added), compared to the only partial success

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such candidates enjoyed in former District 23, id., at 488,
489, 496.
The majority dismisses the District Court’s careful fact
finding on the ground that the experienced judges did not
properly consider whether District 25 was “compact” for
purposes of § 2. Ante, at 430–431. But the District Court
opinion itself clearly demonstrates that the court carefully
considered the compactness of the minority group in District
25, just as the majority says it should have. The District
Court recognized the very features of District 25 highlighted
by the majority and unambiguously concluded, under the to
tality of the circumstances, that the district was an effective
Latino opportunity district, and that no violation of § 2 in the
area had been shown.
Unable to escape the District Court’s factfinding, the ma
jority is left in the awkward position of maintaining that its
theory about compactness is more important under § 2 than
the actual prospects of electoral success for Latino-preferred
candidates under a State’s apportionment plan. And that
theory is a novel one to boot. Never before has this or any
other court struck down a State’s redistricting plan under
§ 2, on the ground that the plan achieves the maximum num
ber of possible majority-minority districts, but loses on style
points, in that the minority voters in one of those districts
are not as “compact” as the minority voters would be in an
other district were the lines drawn differently. Such a basis
for liability pushes voting rights litigation into a whole new
area—an area far removed from the concern of the Voting
Rights Act to ensure minority voters an equal opportu
nity “to elect representatives of their choice.” 42 U. S. C.
§ 1973(b).
I
Under § 2, a plaintiff alleging “a denial or abridgement of
the right of [a] citizen of the United States to vote on account
of race or color,” § 1973(a), must show, “based on the totality
of circumstances,”

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“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) . . . in that its mem
bers have less opportunity than other members of the
electorate to participate in the political process and to
elect representatives of their choice.” § 1973(b).
In Thornburg v. Gingles, 478 U. S. 30 (1986), we found that a
plaintiff challenging the State’s use of multimember districts
could meet this standard by showing that replacement of the
multimember district with several single-member districts
would likely provide minority voters in at least some of those
single-member districts “the ability . . . to elect representa
tives of their choice.” Id., at 48. The basis for this require
ment was simple: If no districts were possible in which mi
nority voters had prospects of electoral success, then the use
of multimember districts could hardly be said to thwart mi
nority voting power under § 2. See ibid. (“Minority voters
who contend that the multimember form of districting vio
lates § 2 must prove that the use of a multimember electoral
structure operates to minimize or cancel out their ability to
elect their preferred candidates”).
The next generation of voting rights litigation confirmed
that “manipulation of [single-member] district lines” could
also dilute minority voting power if it packed minority voters
in a few districts when they might control more, or dispersed
them among districts when they might control some. Voin
ovich v. Quilter, 507 U. S. 146, 153–154 (1993). Again the
basis for this application of Gingles was clear: A config
uration of district lines could only dilute minority voting
strength if under another configuration minority voters had
better electoral prospects. Thus in cases involving single
member districts, the question was whether an additional
majority-minority district should be created, see Abrams v.
Johnson, 521 U. S. 74, 91–92 (1997); Growe v. Emison, 507
U. S. 25, 38 (1993), or whether additional influence districts

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should be created to supplement existing majority-minority
districts, see Voinovich, supra, at 154.
We have thus emphasized, since Gingles itself, that a § 2
plaintiff must at least show an apportionment that is likely
to perform better for minority voters, compared to the exist
ing one. See 478 U. S., at 99 (O’Connor, J., concurring in
judgment) (“[T]he relative lack of minority electoral success
under a challenged plan, when compared with the success
that would be predicted under the measure of undiluted mi
nority voting strength the court is employing, can constitute
powerful evidence of vote dilution”). And unsurprisingly, in
the context of single-member districting schemes, we have
invariably understood this to require the possibility of addi
tional single-member districts that minority voters might
control.
Johnson v. De Grandy, 512 U. S. 997 (1994), reaffirmed this
understanding. The plaintiffs in De Grandy claimed that,
by reducing the size of the Hispanic majority in some dis
tricts, additional Hispanic-majority districts could be cre
ated. Id., at 1008. The State defended a plan that did not
do so on the ground that the proposed additional districts,
while containing nominal Hispanic majorities, would “lack
enough Hispanic voters to elect candidates of their choice
without cross-over votes from other ethnic groups,” and thus
could not bolster Hispanic voting strength under § 2. Ibid.
In keeping with the requirement that a § 2 plaintiff must
show that an alternative apportionment would present better
prospects for minority-preferred candidates, the Court set
out the condition that a challenge to an existing set of
single-member districts must show the possibility of “creat
ing more than the existing number of reasonably compact
districts with a sufficiently large minority population to elect
candidates of its choice.” Ibid. De Grandy confirmed that
simply proposing a set of districts that divides up a minority
population in a different manner than the State has chosen,

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without a gain in minority opportunity districts, does not
show vote dilution, but “only that lines could have been
drawn elsewhere.” Id., at 1015.
Here the District Court found that six Latino-majority dis
tricts were all that south and west Texas could support.
Plan 1374C provides six such districts, just as its predecessor
did. This fact, combined with our precedent making clear
that § 2 plaintiffs must show an alternative with better pros
pects for minority success, should have resulted in affirm
ance of the District Court decision on vote dilution in south
and west Texas. See Gingles, supra, at 79 (“[T]he clearly
erroneous test of [Federal Rule of Civil Procedure] 52(a) is
the appropriate standard for appellate review of a finding of
vote dilution. . . . [W]hether the political process is equally
open to minority voters . . . is peculiarly dependent upon the
facts” (internal quotation marks omitted)); Rogers v. Lodge,
458 U. S. 613, 622, 627 (1982).
The majority avoids this result by finding fault with the
District Court’s analysis of one of the Latino-majority dis
tricts in the State’s plan. That district—District 25—is like
other districts in the State’s plan, like districts in the prede
cessor plan, and like districts in the plaintiffs’ proposed
seven-district plan, in that it joins population concentrations
around the border area with others closer to the center of
the State. The District Court explained that such “ ‘bacon
strip’ ” districts are inevitable, given the geography and de
mography of that area of the State. Session, 298 F. Supp.
2d, at 486–487, 490, 491, n. 125, 502.
The majority, however, criticizes the District Court be
cause its consideration of the compactness of District 25
under § 2 was deficient. According to the majority,
“the court analyzed the issue only for equal protection
purposes. In the equal protection context, compactness
focuses on the contours of district lines to determine
whether race was the predominant factor in drawing

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those lines. Under § 2, by contrast, the injury is vote
dilution, so the compactness inquiry embraces different
considerations.” Ante, at 433 (citation omitted).
This is simply an inaccurate description of the District
Court’s opinion. The District Court expressly considered
compactness in the § 2 context. That is clear enough from
the fact that the majority quotes the District Court’s opinion
in elaborating on the standard of compactness it believes the
District Court should have applied. See ante, at 424 (quot
ing Session, supra, at 502); ante, at 434 (quoting Session,
supra, at 502). The very passage quoted by the majority
about the different “ ‘needs and interests’ ” of the communi
ties in District 25, ante, at 424, appeared in the District
Court opinion precisely because the District Court recog
nized that those concerns “bear on the extent to which the
new districts”—including District 25—“are functionally ef
fective Latino opportunity districts, important to under
standing whether dilution results from Plan 1374C,” Ses
sion, 298 F. Supp. 2d, at 502 (emphasis added); see also ibid.
(noting different “needs and interests of Latino communi
ties” in the “ ‘bacon-strip’ ” districts and concluding that
“[t]he issue is whether these features mean that the newly
configured districts dilute the voting strength of Latinos”
(emphasis added)).
Indeed, the District Court addressed compactness in two
different sections of its opinion: in Part VI–C with respect
to vote dilution under § 2, and in Part VI–D with respect
to whether race predominated in drawing district lines, for
purposes of equal protection analysis. The District Court
even explained, in considering in Part VI–C the differences
between the Latino communities in the bacon-strip districts
(including District 25) for purposes of vote dilution under § 2,
how the same concerns bear on the plaintiffs’ equal protec
tion claim, discussed in Part VI–D. Id., at 502, n. 168. The
majority faults the District Court for discussing “the relative
smoothness of the district lines,” because that is only perti

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nent in the equal protection context, ante, at 432, but it was
only in the equal protection context that the District Court
mentioned the relative smoothness of district lines. See 298
F. Supp. 2d, at 506–508. In discussing compactness in
Part VI–C, with respect to vote dilution under § 2, the Dis
trict Court considered precisely what the majority says it
should have: the diverse needs and interests of the different
Latino communities in the district. Unlike the majority,
however, the District Court properly recognized that the
question under § 2 was “whether these features mean that
the newly-configured districts dilute the voting strength of
Latinos.” Id., at 502.
The District Court’s answer to that question was
unambiguous:
“Witnesses testified that Congressional Districts 15 and
25 would span colonias in Hidalgo County and suburban
areas in Central Texas, but the witnesses testified, and
the regression data show, that both districts are effec
tive Latino opportunity districts, with the Hispanic
preferred candidate winning every primary and general
election examined in District 25.” Id., at 503.
The District Court emphasized this point again later on:
“The newly-configured Districts 15, 25, 27, and 28 cover
more territory and travel farther north than did the cor
responding districts in Plan 1151C. The districts com
bine more voters from the central part of the State with
voters from the border cities than was the case in Plan
1151C. The population data, regression analyses, and
the testimony of both expert witnesses and witnesses
knowledgeable about how politics actually works in the
area lead to the finding that in Congressional Districts
25 and 28, Latino voters will likely control every pri
mary and general election outcome.” Id., at 503–504.
I find it inexplicable how the majority can read these pas
sages and state that the District Court reached its finding

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on the effectiveness of District 25 “without accounting for
the detrimental consequences of its compactness problems.”
Ante, at 442. The majority does “not question” the District
Court’s parsing of the statistical evidence to reach the find
ing that District 25 was an effective Latino opportunity dis
trict. Ante, at 434. But the majority nonetheless rejects
that finding, based on its own theory that “[t]he practical
consequence of drawing a district to cover two distant, dis
parate communities is that one or both groups will be unable
to achieve their political goals,” ibid., and because the find
ing rests on the “prohibited assumption” that voters of the
same race will “think alike, share the same political inter
ests, and will prefer the same candidates at the polls,” ante,
at 433 (internal quotation marks omitted). It is important
to be perfectly clear about the following, out of fairness to
the District Court if for no other reason: No one has made
any “assumptions” about how voters in District 25 will vote
based on their ethnic background. Not the District Court;
not this dissent. There was a trial. At trials, assumptions
and assertions give way to facts. In voting rights cases,
that is typically done through regression analyses of past
voting records. Here, those analyses showed that the Lat
ino candidate of choice prevailed in every primary and gen
eral election examined for District 25. See Session, 298
F. Supp. 2d, at 499–500. Indeed, a plaintiffs’ expert con
ceded that Latino voters in District 25 “have an effec
tive opportunity to control outcomes in both primary and
general elections.” Id., at 500. The District Court, far
from “assum[ing]” that Latino voters in District 25 would
“prefer the same candidate at the polls,” concluded that they
were likely to do so based on statistical evidence of historic
voting patterns.
Contrary to the erroneous statements in the majority
opinion, the District Court judges did not simply “aggre
gat[e]” minority voters to measure effectiveness. Ante,
at 432. They did not simply rely on the “mathematical pos
sibility” of minority voters voting for the same preferred

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candidate, ante, at 435, and it is a disservice to them to state
otherwise. It is the majority that is indulging in unwar
ranted “assumption[s]” about voting, contrary to the facts
found at trial based on carefully considered evidence.
What is blushingly ironic is that the district preferred by
the majority—former District 23—suffers from the same
“flaw” the majority ascribes to District 25, except to a
greater degree. While the majority decries District 25
because the Latino communities there are separated by
“enormous geographical distance,” ibid., and are “hundreds
of miles apart,” ante, at 441, Latino communities joined to
form the voting majority in old District 23 are nearly twice
as far apart. Old District 23 runs “from El Paso, over 500
miles, into San Antonio and down into Laredo. It covers a
much longer distance than . . . the 300 miles from Travis to
McAllen [in District 25].” App. 292 (testimony of T. Giber
son); see id., at 314 (expert report of T. Giberson) (“[D]istrict
23 in any recent Congressional plan extends from the out
skirts of El Paso down to Laredo, dipping into San Antonio
and spanning 540 miles”). So much for the significance of
“enormous geographical distance.” Or perhaps the majority
is willing to “assume” that Latinos around San Antonio have
common interests with those on the Rio Grande rather than
those around Austin, even though San Antonio and Austin
are a good bit closer to each other (less than 80 miles apart)
than either is to the Rio Grande.*
*The majority’s fig leaf after stressing the distances involved in District
25—while ignoring the greater ones in former District 23—is to note that
“it is the enormous geographical distance separating the Austin and
Mexican-border communities, coupled with the disparate needs and inter
ests of these populations—not either factor alone—that renders District
25 noncompact for § 2 purposes.” Ante, at 435. Of course no single fac
tor is determinative because the ultimate question is whether the district
is an effective majority-minority opportunity district. There was a trial
on that; the District Court found that District 25 was, while former Dis
trict 23 “did not perform as an effective opportunity district.” Session v.
Perry, 298 F. Supp. 2d 451, 496 (ED Tex. 2004) (per curiam). The major
ity notes that there was no challenge to or finding on the compactness of

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The District Court considered expert evidence on pro
jected election returns and concluded that District 25 would
likely perform impeccably for Latino voters, better indeed
than former District 23. See Session, 298 F. Supp. 2d, at
503–504, 488, 489, 496. The District Court also concluded
that the other districts in Plan 1374C would give Latino vot
ers a favorable opportunity to elect their preferred candi
dates. See id., at 499 (observing the parties’ agreement that
Districts 16 and 20 in Plan 1374C “do clearly provide effec
tive Latino citizen voting age population majorities”); id., at
504 (“Latino voters will likely control every primary and
general election outcome” in District 28, and “every primary
outcome and almost every general election outcome” in Dis
tricts 15 and 27, under Plan 1374C). In light of these find
ings, the District Court concluded that “compared to Plan
1151C . . . Plaintiffs have not shown an impermissible reduc
tion in effective opportunities for Latino electoral control
or in opportunities for Latino participation in the political
process.” Ibid.
Viewed against this backdrop, the majority’s holding that
Plan 1374C violates § 2 amounts to this: A State has de
nied minority voters equal opportunity to “participate in
the political process and to elect representatives of their
choice,” 42 U. S. C. § 1973(b), when the districts in the plan
a State has created have better prospects for the success of
old District 23, ante, at 435—certainly not compared to District 25—but
presumably that was because, as the majority does not dispute, “[u]ntil
today, no court has ever suggested that lack of compactness under § 2
might invalidate a district that a State has chosen to create in the first
instance,” infra, at 505. The majority asserts that Latino voters in old
District 23 had found an “efficacious political identity,” while doing so
would be a challenge for such voters in District 25, ante, at 435, but the
latter group has a distinct advantage over the former in this regard: They
actually vote to a significantly greater extent. See App. 187 (expert re
port of R. Gaddie) (for Governor and Senate races in 2002, estimated La
tino turnout for District 25 was 46% to 51%, compared to 41.3% and 44%
for District 23).

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minority-preferred candidates than an alternative plan, sim
ply because one of the State’s districts combines different
minority communities, which, in any event, are likely to vote
as a controlling bloc. It baffles me how this could be vote
dilution, let alone how the District Court’s contrary conclu
sion could be clearly erroneous.
II
The majority arrives at the wrong resolution because it
begins its analysis in the wrong place. The majority de
clares that a Gingles violation is made out “[c]onsidering”
former District 23 “in isolation,” and chides the State for
suggesting that it can remedy this violation “by creating new
District 25 as an offsetting opportunity district.” Ante,
at 429. According to the majority, Ҥ 2 does not forbid the
creation of a noncompact majority-minority district,” but
“[t]he noncompact district cannot . . . remedy a violation else
where in the State.” Ante, at 430.
The issue, however, is not whether a § 2 violation in Dis
trict 23, viewed “in isolation,” can be remedied by the cre
ation of a Latino opportunity district in District 25. When
the question is where a fixed number of majority-minority
districts should be located, the analysis should never begin
by asking whether a Gingles violation can be made out in
any one district “in isolation.” In these circumstances, it is
always possible to look at one area of minority population
“in isolation” and see a “violation” of § 2 under Gingles. For
example, if a State drew three districts in a group, with 60%
minority voting-age population in the first two, and 40% in
the third, the 40% can readily claim that their opportunities
are being thwarted because they were not grouped with an
additional 20% of minority voters from one of the other dis
tricts. But the remaining minority voters in the other dis
tricts would have precisely the same claim if minority voters
were shifted from their districts to join the 40%. See De
Grandy, 512 U. S., at 1015–1016 (“[S]ome dividing by district

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lines and combining within them is virtually inevitable and
befalls any population group of substantial size”). That is
why the Court has explained that no individual minority
voter has a right to be included in a majority-minority dis
trict. See Shaw v. Hunt, 517 U. S. 899, 917, and n. 9 (1996)
(Shaw II); id., at 947 (Stevens, J., dissenting). Any other
approach would leave the State caught between incompatible
claims by different groups of minority voters. See Session,
supra, at 499 (“[T]here is neither sufficiently dense and com
pact population in general nor Hispanic population in partic
ular to support” retaining former District 23 and adding
District 25).
The correct inquiry under § 2 is not whether a Gingles vio
lation can be made out with respect to one district “in isola
tion,” but instead whether line-drawing in the challenged
area as a whole dilutes minority voting strength. A proper
focus on the district lines in the area as a whole also demon
strates why the majority’s reliance on Bush v. Vera, 517 U. S.
952 (1996), and Shaw II is misplaced.
In those cases, we rejected on the basis of lack of compact
ness districts that a State defended against equal protection
strict scrutiny on the grounds that they were necessary to
avoid a § 2 violation. See Vera, supra, at 977–981 (plurality
opinion); Shaw II, supra, at 911, 916–918. But those cases
never suggested that a plaintiff proceeding under § 2 could
rely on lack of compactness to prove liability. And the dis
tricts in those cases were nothing like District 25 here. To
begin with, they incorporated multiple, small, farflung pock
ets of minority population, and did so by ignoring the bound
aries of political subdivisions. Vera, supra, at 987–989 (Ap
pendices A–C to plurality opinion) (depicting districts); Shaw
II, supra, at 902–903 (describing districts). Here the Dis
trict Court found that the long and narrow but more normal
shape of District 25 was shared by other districts both in
the state plan and the predecessor plan—not to mention the
plaintiffs’ own proposed plan—and resulted from the demog

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raphy and geography of south and west Texas. See Session,
298 F. Supp. 2d, at 487–488, 491, and n. 125. And none of
the minority voters in the Vera and Shaw II districts could
have formed part of a Gingles-compliant district, see Vera,
supra, at 979 (plurality opinion) (remarking of one of the
districts at issue that it “reaches out to grab small and appar
ently isolated minority communities which, based on the evi
dence presented, could not possibly form part of a compact
majority-minority district”); Shaw II, 517 U. S., at 916–917
(describing the challenged district as “in no way coincident
with the compact Gingles district”); while here no one dis
putes that at least the Latino voters in the border area of
District 25—the larger concentration—must be part of a
Latino-majority district if six are to be placed in south and
west Texas.
This is not, therefore, a case of the State drawing a
majority-minority district “anywhere,” once a § 2 violation
has been established elsewhere in the State. Id., at 917.
The question is instead whether the State has some latitude
in deciding where to place the maximum possible number of
majority-minority districts, when one of those districts con
tains a substantial proportion of minority voters who must
be in a majority-minority district if the maximum number is
to be created at all.
Until today, no court has ever suggested that lack of com
pactness under § 2 might invalidate a district that a State
has chosen to create in the first instance. The “geographi
ca[l] compact[ness]” of a minority population has previously
been only an element of the plaintiff ’s case. See Gingles,
478 U. S., at 49–50. That is to say, the § 2 plaintiff bears the
burden of demonstrating that “the minority group . . . is
sufficiently large and geographically compact to constitute
a majority in a single-member district.” Id., at 50. Thus
compactness, when it has been invoked by lower courts to
defeat § 2 claims, has been applied to a remedial district a
plaintiff proposes. See, e. g., Sensley v. Albritton, 385 F. 3d

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591, 596–597 (CA5 2004); Mallory v. Ohio, 173 F. 3d 377,
382–383 (CA6 1999); Stabler v. County of Thurston, 129 F. 3d
1015, 1025 (CA8 1997). Indeed, the most we have had to say
about the compactness aspect of the Gingles inquiry is to
profess doubt whether it was met when the district a § 2
plaintiff proposed was “oddly shaped.” Growe v. Emison,
507 U. S., at 38, 41. And even then, we rejected § 2 liability
not because of the odd shape, but because no evidence of
majority bloc voting had been submitted. Id., at 41–42.
Far from imposing a freestanding compactness obligation
on the States, we have repeatedly emphasized that “States
retain broad discretion in drawing districts to comply with
the mandate of § 2,” Shaw II, supra, at 917, n. 9, and that § 2
itself imposes “no per se prohibitions against particular types
of districts,” Voinovich v. Quilter, 507 U. S., at 155. We
have said that the States retain “flexibility” in complying
with voting rights obligations that “federal courts enforcing
§ 2 lack.” Vera, supra, at 978. The majority’s intrusion
into line-drawing, under the authority of § 2, when the lines
already achieve the maximum possible number of majority
minority opportunity districts, suggests that all this is just
so much hollow rhetoric.
The majority finds fault in a “one-way rule whereby plain
tiffs must show compactness but States need not,” ante, at
431, without bothering to explain how its contrary rule of
equivalence between plaintiffs litigating and the elected
representatives of the people legislating comports with our
repeated assurances concerning the discretion and flexibil
ity left to the States. Section 2 is, after all, part of the Vot
ing Rights Act, not the Compactness Rights Act. The word
“compactness” appears nowhere in § 2, nor even in the
agreed-upon legislative history. See Gingles, supra, at 36–
37. To bestow on compactness such precedence in the § 2
inquiry is the antithesis of the totality test that the statute
contemplates. De Grandy, 512 U. S., at 1011 (“[T]he ulti
mate conclusions about equality or inequality of opportunity

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were intended by Congress to be judgments resting on com
prehensive, not limited, canvassing of relevant facts”). Sug
gesting that determinative weight should have been given
this one factor contravenes our understanding of how § 2
analysis proceeds, see Gingles, 478 U. S., at 45 (quoting state
ment from the legislative history of § 2 that “ ‘there is no
requirement that any particular number of factors be proved,
or that a majority of them point one way or the other’ ”),
particularly when the proper standard of review for the Dis
trict Court’s ultimate judgment under § 2 is clear error, see
id., at 78–79.
A § 2 plaintiff has no legally protected interest in compact
ness, apart from how deviations from it dilute the equal op
portunity of minority voters “to elect representatives of
their choice.” § 1973(b). And the District Court found that
any effect on this opportunity caused by the different “needs
and interests” of the Latino voters within District 25 was at
least offset by the fact that, despite these differences, they
were likely to prefer the same candidates at the polls. This
finding was based on the evidence, not assumptions.
Whatever the competing merits of old District 23 and new
District 25 at the margins, judging between those two
majority-minority districts is surely the responsibility of the
legislature, not the courts. See Georgia v. Ashcroft, 539
U. S. 461, 480 (2003). The majority’s squeamishness about
the supposed challenge facing a Latino-preferred candidate
in District 25—having to appeal to Latino voters near the
Rio Grande and those near Austin—is not unlike challenges
candidates face around the country all the time, as part of a
healthy political process. It is in particular not unlike the
challenge faced by a Latino-preferred candidate in the dis
trict favored by the majority, former District 23, who must
appeal to Latino voters both in San Antonio and in El Paso,
540 miles away. “[M]inority voters are not immune from
the obligation to pull, haul, and trade to find common political
ground, the virtue of which is not to be slighted in applying

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a statute meant to hasten the waning of racism in American
politics.” De Grandy, 512 U. S., at 1020. As the Court has
explained, “the ultimate right of § 2 is equality of opportu
nity, not a guarantee of electoral success for minority
preferred candidates of whatever race.” Id., at 1014, n. 11.
Holding that such opportunity is denied because a State
draws a district with 55% minority citizen voting-age popula
tion, rather than keeping one with a similar percentage (but
lower turnout) that did not in any event consistently elect
minority-preferred candidates, gives an unfamiliar meaning
to the word “opportunity.”
III
Even if a plaintiff satisfies the Gingles factors, a finding of
vote dilution under § 2 does not automatically follow. In De
Grandy, we identified another important aspect of the to
tality inquiry under § 2: whether “minority voters form ef
fective voting majorities in a number of districts roughly
proportional to the minority voters’ respective shares in
the voting-age population.” 512 U. S., at 1000. A finding
of proportionality under this standard can defeat § 2 liability
even if a clear Gingles violation has been made out. In De
Grandy itself, we found that “substantial proportionality”
defeated a claim that the district lines at issue “diluted the
votes cast by Hispanic voters,” 512 U. S., at 1014–1015, even
assuming that the plaintiffs had shown “the possibility of
creating more than the existing number of reasonably com
pact districts with a sufficiently large minority population to
elect candidates of its choice,” id., at 1008–1009 (emphasis
added).
The District Court determined that south and west Texas
was the appropriate geographic frame of reference for ana
lyzing proportionality: “If South and West Texas is the only
area in which Gingles is applied and can be met, as Plaintiffs
argue, it is also the relevant area for measuring proportional
ity.” Session, 298 F. Supp. 2d, at 494. As the court ex

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plained, “[l]ower courts that have analyzed ‘proportionality’
in the De Grandy sense have been consistent in using the
same frame of reference for that factor and for the factors set
forth in Gingles.” Id., at 493–494, and n. 131 (citing cases).
In south and west Texas, Latinos constitute 58% of the
relevant population and control 85% (six out of seven) of the
congressional seats in that region. That includes District
25, because the District Court found, without clear error,
that Latino voters in that district “will likely control every
primary and general election outcome.” Id., at 504. But
even not counting that district as a Latino opportunity dis
trict, because of the majority’s misplaced compactness con
cerns, Latinos in south and west Texas still control congres
sional seats in a markedly greater proportion—71% (five out
of seven)—than their share of the population there. In
other words, in the only area in which the Gingles factors
can be satisfied, Latino voters enjoy effective political power
46% above their numerical strength, or, even disregarding
District 25 as an opportunity district, 24% above their nu
merical strength. See De Grandy, 512 U. S., at 1017, n. 13.
Surely these figures do not suggest a denial of equal oppor
tunity to participate in the political process.
The majority’s only answer is to shift the focus to state
wide proportionality. In De Grandy itself, the Court re
jected an argument that proportionality should be analyzed
on a statewide basis as “flaw[ed],” because “the argument
would recast these cases as they come to us, in order to bar
consideration of proportionality except on statewide scope,
whereas up until now the dilution claims have been litigated
on a smaller geographical scale.” Id., at 1021–1022. The
same is true here: The plaintiffs’ § 2 claims concern “the im
pact of the legislative plan on Latino voting strength in
South and West Texas,” Session, supra, at 486 (emphasis
added), and that is the only area of the State in which they
can satisfy the Gingles factors. That is accordingly the
proper frame of reference in analyzing proportionality.

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In any event, at a statewide level, 6 Latino opportunity
districts out of 32, or 19% of the seats, would certainly seem
to be “roughly proportional” to the Latino 22% share of the
population. See De Grandy, supra, at 1000. The District
Court accordingly determined that proportionality sug
gested the lack of vote dilution, even considered on a state
wide basis. Session, supra, at 494. The majority avoids
that suggestion by disregarding the District Court’s factual
finding that District 25 is an effective Latino opportunity
district. That is not only improper, for the reasons given,
but the majority’s rejection of District 25 as a Latino oppor
tunity district is also flatly inconsistent with its statewide
approach to analyzing proportionality. Under the majority’s
view, the Latino voters in the northern end of District 25
cannot “count” along with the Latino voters at the southern
end to form an effective majority, because they belong to
different communities. But Latino voters from everywhere
around the State of Texas—even those from areas where the
Gingles factors are not satisfied—can “count” for purposes
of calculating the proportion against which effective Latino
electoral power should be measured. Heads the plaintiffs
win; tails the State loses.
* * *
The State has drawn a redistricting plan that provides six
of seven congressional districts with an effective majority of
Latino voting-age citizens in south and west Texas, and it is
not possible to provide more. The majority nonetheless
faults the state plan because of the particular mix of Latino
voters forming the majority in one of the six districts—a
combination of voters from around the Rio Grande and from
around Austin, as opposed to what the majority uncritically
views as the more monolithic majority assembled (from more
farflung communities) in old District 23. This despite the
express factual findings, from judges far more familiar with
Texas than we are, that the State’s new district would be a

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more effective Latino-majority district than old District 23
ever was, and despite the fact that any plan would neces
sarily leave some Latino voters outside a Latino-majority
district.
Whatever the majority believes it is fighting with its hold
ing, it is not vote dilution on the basis of race or ethnicity.
I do not believe it is our role to make judgments about which
mixes of minority voters should count for purposes of form
ing a majority in an electoral district, in the face of factual
findings that the district is an effective majority-minority
district. It is a sordid business, this divvying us up by race.
When a State’s plan already provides the maximum possible
number of majority-minority effective opportunity districts,
and the minority enjoys effective political power in the area
well in excess of its proportion of the population, I would
conclude that the courts have no further role to play in rejig
gering the district lines under § 2.
I respectfully dissent from Part III of the Court’s opinion.
Justice Scalia, with whom Justice Thomas joins, and
with whom The Chief Justice and Justice Alito join as
to Part III, concurring in the judgment in part and dissent
ing in part.
I
As I have previously expressed, claims of unconstitutional
partisan gerrymandering do not present a justiciable case or
controversy. See Vieth v. Jubelirer, 541 U. S. 267, 271–306
(2004) (plurality opinion). Justice Kennedy’s discussion
of appellants’ political-gerrymandering claims ably demon
strates that, yet again, no party or judge has put forth a
judicially discernible standard by which to evaluate them.
See ante, at 413–423. Unfortunately, the opinion then con
cludes that appellants have failed to state a claim as to politi
cal gerrymandering, without ever articulating what the
elements of such a claim consist of. That is not an avail
able disposition of this appeal. We must either conclude

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that the claim is nonjusticiable and dismiss it, or else set
forth a standard and measure appellants’ claim against it.
Vieth, supra, at 301. Instead, we again dispose of this
claim in a way that provides no guidance to lower court
judges and perpetuates a cause of action with no discernible
content. We should simply dismiss appellants’ claims as
nonjusticiable.
II
I would dismiss appellants’ vote-dilution claims premised
on § 2 of the Voting Rights Act of 1965 for failure to state a
claim, for the reasons set forth in Justice Thomas’s opinion,
which I joined, in Holder v. Hall, 512 U. S. 874, 891–946
(1994) (opinion concurring in judgment). As The Chief
Justice makes clear, see ante, p. 492 (opinion concurring in
part, concurring in judgment in part, and dissenting in part),
the Court’s § 2 jurisprudence continues to drift ever further
from the Act’s purpose of ensuring minority voters equal
electoral opportunities.
III
Because I find no merit in either of the claims addressed
by the Court, I must consider appellants’ race-based equal
protection claims. The GI Forum appellants focus on the
removal of 100,000 residents, most of whom are Latino, from
District 23. They assert that this action constituted inten
tional vote dilution in violation of the Equal Protection
Clause. The Jackson appellants contend that the intentional
creation of District 25 as a majority-minority district was an
impermissible racial gerrymander. The District Court re
jected the equal protection challenges to both districts.
A
The GI Forum appellants contend that the Texas Legisla
ture removed a large number of Latino voters living in Webb
County from District 23 with the purpose of diminishing La
tino electoral power in that district. Congressional redis
tricting is primarily a responsibility of state legislatures, and
legislative motives are often difficult to discern. We pre

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sume, moreover, that legislatures fulfill this responsibility in
a constitutional manner. Although a State will almost al
ways be aware of racial demographics when it redistricts, it
does not follow from this awareness that the State redis
tricted on the basis of race. See Miller v. Johnson, 515 U. S.
900, 915–916 (1995). Thus, courts must “exercise extraordi
nary caution” in concluding that a State has intentionally
used race when redistricting. Id., at 916. Nevertheless,
when considerations of race predominate, we do not hesitate
to apply the strict scrutiny that the Equal Protection Clause
requires. See, e. g., Shaw v. Hunt, 517 U. S. 899, 908 (1996)
(Shaw II); Miller, supra, at 920.
At the time the legislature redrew Texas’s congressional
districts, District 23 was represented by Congressman
Henry Bonilla, whose margin of victory and support among
Latinos had been steadily eroding. See Session v. Perry,
298 F. Supp. 2d 451, 488–489 (ED Tex. 2004) (per curiam).
In the 2002 election, he won with less than 52 percent of the
vote, ante, at 423–424 (opinion of the Court), and received
only 8 percent of the Latino vote, Session, 298 F. Supp. 2d,
at 488. The District Court found that the goal of the map
drawers was to adjust the lines of that district to protect
the imperiled incumbent: “The record presents undisputed
evidence that the Legislature desired to increase the number
of Republican votes cast in Congressional District 23 to
shore up Bonilla’s base and assist in his reelection.” Ibid.
To achieve this goal, the legislature extended the district
north to include counties in the central part of the State with
residents who voted Republican, adding 100,000 people to the
district. Then, to comply with the one-person, one-vote re
quirement, the legislature took one-half of heavily Demo
cratic Webb County, in the southern part of the district, and
included it in the neighboring district. Id., at 488–489.
Appellants acknowledge that the State redrew District 23
at least in part to protect Bonilla. They argue, however,
that they assert an intentional vote-dilution claim that is an
alytically distinct from the racial-gerrymandering claim of

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the sort at issue in Shaw v. Reno, 509 U. S. 630, 642–649
(1993) (Shaw I). A vote-dilution claim focuses on the major
ity’s intent to harm a minority’s voting power; a Shaw I claim
focuses instead on the State’s purposeful classification of
individuals by their race, regardless of whether they are
helped or hurt. Id., at 651–652 (distinguishing the vote
dilution claim in United Jewish Organizations of Williams
burgh, Inc. v. Carey, 430 U. S. 144 (1977)). In contrast to a
Shaw I claim, appellants contend, in a vote-dilution claim the
plaintiff need not show that the racially discriminatory moti
vation predominated, but only that the invidious purpose
was a motivating factor. Appellants contrast Easley v. Cro
martie, 532 U. S. 234, 241 (2001) (in a racial-gerrymandering
claim, “[r]ace must not simply have been a motivation for the
drawing of a majority-minority district, but the predomi
nant factor motivating the legislature’s districting decision”
(citation and internal quotation marks omitted)), with Ar
lington Heights v. Metropolitan Housing Development
Corp., 429 U. S. 252, 265–266 (1977), and Rogers v. Lodge, 458
U. S. 613, 617 (1982). Whatever the validity of this distinc
tion, on the facts of these cases it is irrelevant. The District
Court’s conclusion that the legislature was not racially moti
vated when it drew the plan as a whole, Session, 298 F. Supp.
2d, at 473, and when it split Webb County, id., at 509, dooms
appellants’ intentional-vote-dilution claim.
We review a district court’s factual finding of a legisla
ture’s motivation for clear error. See Easley, supra, at 242.
We will not overturn that conclusion unless we are “ ‘left
with the definite and firm conviction that a mistake has been
committed.’ ” Anderson v. Bessemer City, 470 U. S. 564, 573
(1985) (quoting United States v. United States Gypsum Co.,
333 U. S. 364, 395 (1948)). I cannot say that the District
Court clearly erred when it found that “[t]he legislative moti
vation for the division of Webb County between Congres
sional District 23 and Congressional District 28 in Plan
1374C was political.” Session, supra, at 509.

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Appellants contend that the District Court had evidence
of the State’s intent to minimize Latino voting power. They
note, for instance, that the percentage of Latinos in District
23’s citizen voting-age population decreased significantly as
a result of redistricting and that only 8 percent of Latinos
had voted for Bonilla in the last election. They also point to
testimony indicating that the legislature was conscious that
protecting Bonilla would result in the removal of Latinos
from the district and was pleased that, even after redistrict
ing, he would represent a district in which a slight majority
of voting-age residents was Latino. Of the individuals re
moved from District 23, 90 percent of those of voting age
were Latinos, and 87 percent voted for Democrats in 2002.
Id., at 489. The District Court concluded that these individ
uals were removed because they voted for Democrats and
against Bonilla, not because they were Latino. Id., at 473,
508–510. This finding is entirely in accord with our case
law, which has recognized that “a jurisdiction may engage in
constitutional political gerrymandering, even if it so happens
that the most loyal Democrats happen to be black Democrats
and even if the State were conscious of that fact.” Hunt v.
Cromartie, 526 U. S. 541, 551 (1999). See also Bush v. Vera,
517 U. S. 952, 968 (1996) (plurality opinion) (“If district lines
merely correlate with race because they are drawn on the
basis of political affiliation, which correlates with race, there
is no racial classification to justify”).1 Appellants argue that
in evaluating the State’s stated motivation, the District
1 The District Court did not find that the legislature had two motivations
in dividing Webb County, one invidious and the other political, and that
the political one predominated. Rather, it accepted the State’s explana
tion that although the individuals moved were largely Latino, they were
moved because they voted for Democrats and against Bonilla. For this
reason, appellants’ argument that incumbent protection cannot be a com
pelling state interest is off the mark. The District Court found that in
cumbent protection, not race, lay behind the redistricting of District 23.
Strict scrutiny therefore does not apply, and the existence vel non of a
compelling state interest is irrelevant.

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Court improperly conflated race and political affiliation by
failing to recognize that the individuals moved were not
Democrats, they just voted against Bonilla. But the Dis
trict Court found that the State’s purpose was to protect
Bonilla, and not just to create a safe Republican district.
The fact that the redistricted residents voted against Bonilla
(regardless of how they voted in other races) is entirely con
sistent with the legislature’s political and nonracial objective.
I cannot find, under the clear error standard, that the Dis
trict Court was required to reach a different conclusion.
See Hunt, supra, at 551. “Discriminatory purpose . . . im
plies more than intent as volition or intent as awareness of
consequences. It implies that the decisionmaker . . . se
lected or reaffirmed a particular course of action at least in
part ‘because of,’ not merely ‘in spite of,’ its adverse effects
upon an identifiable group.” Personnel Administrator of
Mass. v. Feeney, 442 U. S. 256, 279 (1979) (citation, some in
ternal quotation marks, and footnote omitted). The District
Court cited ample evidence supporting its finding that the
State did not remove Latinos from the district because they
were Latinos: The new District 23 is more compact than it
was under the old plan, see Session, 298 F. Supp. 2d, at 506,
the division of Webb County simply followed the interstate
highway, id., at 509–510, and the district’s “lines did not
make twists, turns, or jumps that can be explained only as
efforts to include Hispanics or exclude Anglos, or vice
versa,” id., at 511. Although appellants put forth alterna
tive redistricting scenarios that would have protected Boni
lla, the District Court noted that these alternatives would
not have furthered the legislature’s goal of increasing the
number of Republicans elected statewide. Id., at 497. See
Miller, 515 U. S., at 915 (“Electoral districting is a most dif
ficult subject for legislatures, and so the States must have
discretion to exercise the political judgment necessary to
balance competing interests”). Nor is the District Court’s
finding at all impugned by the fact that certain legislators

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were pleased that Bonilla would continue to represent a nom
inally Latino-majority district.
The ultimate inquiry, as in all cases under the Equal Pro
tection Clause, goes to the State’s purpose, not simply to the
effect of state action. See Washington v. Davis, 426 U. S.
229, 238–241 (1976). Although it is true that the effect of an
action can support an inference of intent, see id., at 242,
there is ample evidence here to overcome any such inference
and to support the State’s political explanation. The Dis
trict Court did not commit clear error by accepting it.
B
The District Court’s finding with respect to District 25 is
another matter. There, too, the District Court applied the
approach set forth in Easley, in which the Court held that
race may be a motivation in redistricting as long as it is not
the predominant one. 532 U. S., at 241. See also Bush, 517
U. S., at 993 (O’Connor, J., concurring) (“[S]o long as they do
not subordinate traditional districting criteria to the use of
race for its own sake or as a proxy, States may intentionally
create majority-minority districts, and may otherwise take
race into consideration, without coming under strict scru
tiny”). In my view, however, when a legislature intention
ally creates a majority-minority district, race is necessarily
its predominant motivation and strict scrutiny is therefore
triggered. See id., at 999–1003 (Thomas, J., joined by
Scalia, J., concurring in judgment). As in Bush, id., at
1002, the State’s concession here sufficiently establishes that
the legislature classified individuals on the basis of their race
when it drew District 25: “[T]o avoid retrogression and
achieve compliance with § 5 of the Voting Rights Act . . . ,
the Legislature chose to create a new Hispanic-opportunity
district—new CD 25—which would allow Hispanics to actu
ally elect its candidate of choice.” Brief for State Appellees
106. The District Court similarly found that “the Legisla
ture clearly intended to create a majority Latino citizen vot

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ing age population district in Congressional District 25.”
Session, supra, at 511. Unquestionably, in my view, the
drawing of District 25 triggers strict scrutiny.
Texas must therefore show that its use of race was nar
rowly tailored to further a compelling state interest. See
Shaw II, 517 U. S., at 908. Texas asserts that it created Dis
trict 25 to comply with its obligations under § 5 of the Voting
Rights Act. Brief for State Appellees 105–106. That pro
vision forbids a covered jurisdiction to promulgate any
“standard, practice, or procedure” unless it “does not have
the purpose and will not have the effect of denying or abridg
ing the right to vote on account of race.” 42 U. S. C. § 1973c.
The purpose of § 5 is to prevent “retrogression in the position
of racial minorities with respect to their effective exercise of
the electoral franchise.” Beer v. United States, 425 U. S.
130, 141 (1976). Since its changes to District 23 had reduced
Latino voting power in that district, Texas asserts that it
needed to create District 25 as a Latino-opportunity district
in order to avoid § 5 liability.
We have in the past left undecided whether compliance
with federal antidiscrimination laws can be a compelling
state interest. See Miller, supra, at 921; Shaw II, supra, at
911. I would hold that compliance with § 5 of the Voting
Rights Act can be such an interest. We long ago upheld
the constitutionality of § 5 as a proper exercise of Congress’s
authority under § 2 of the Fifteenth Amendment to enforce
that Amendment’s prohibition on the denial or abridgment
of the right to vote. See South Carolina v. Katzenbach, 383
U. S. 301 (1966). If compliance with § 5 were not a compel
ling state interest, then a State could be placed in the impos
sible position of having to choose between compliance with
§ 5 and compliance with the Equal Protection Clause. More
over, the compelling nature of the State’s interest in § 5 com
pliance is supported by our recognition in previous cases that
race may be used where necessary to remedy identified past
discrimination. See, e. g., Shaw II, supra, at 909 (citing

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Richmond v. J. A. Croson Co., 488 U. S. 469, 498–506 (1989)).
Congress enacted § 5 for just that purpose, see Katzenbach,
supra, at 309; Beer, supra, at 140–141, and that provision
applies only to jurisdictions with a history of official discrimi
nation, see 42 U. S. C. §§ 1973b(b), 1973c; Vera v. Richards,
861 F. Supp. 1304, 1317 (SD Tex. 1994) (recounting that, be
cause of its history of racial discrimination, Texas became
a jurisdiction covered by § 5 in 1975). In the proper case,
therefore, a covered jurisdiction may have a compelling in
terest in complying with § 5.
To support its use of § 5 compliance as a compelling inter
est with respect to a particular redistricting decision, the
State must demonstrate that such compliance was its “ ‘ac
tual purpose’ ” and that it had “ ‘a strong basis in evidence’
for believing,” Shaw II, supra, at 908–909, n. 4 (citations
omitted), that the redistricting decision at issue was “reason
ably necessary under a constitutional reading and application
of ” the Act, Miller, 515 U. S., at 921.2 Moreover, in order
to tailor the use of race narrowly to its purpose of complying
with the Act, a State cannot use racial considerations to
achieve results beyond those that are required to comply
with the statute. See id., at 926 (rejecting the Department
of Justice’s policy that maximization of minority districts was
required by § 5 and thus that this policy could serve as a
compelling state interest). Section 5 forbids a State to take
action that would worsen minorities’ electoral opportunities;
it does not require action that would improve them.
In determining whether a redistricting decision was rea
sonably necessary, a court must bear in mind that a State is
permitted great flexibility in deciding how to comply with
§ 5’s mandate. See Georgia v. Ashcroft, 539 U. S. 461, 479–
483 (2003). For instance, we have recognized that § 5 does
not constrain a State’s choice between creating majority
minority districts or minority-influence districts. Id., at
2 No party here raises a constitutional challenge to § 5 as applied in these
cases, and I assume its application is consistent with the Constitution.

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480–483. And we have emphasized that, in determining
whether a State has impaired a minority’s “effective exercise
of the electoral franchise,” a court should look to the totality
of the circumstances statewide. These circumstances in
clude the ability of a minority group “to elect a candidate of
its choice” or “to participate in the political process,” the
positions of legislative leadership held by individuals repre
senting minority districts, and support for the new plan by
the representatives previously elected from these districts.
Id., at 479–485.
In light of these many factors bearing upon the question
whether the State had a strong evidentiary basis for believ
ing that the creation of District 25 was reasonably necessary
to comply with § 5, I would normally remand for the District
Court to undertake that “fact-intensive” inquiry. See id., at
484, 490. Appellants concede, however, that the changes
made to District 23 “necessitated creating an additional ef
fective Latino district elsewhere, in an attempt to avoid Vot
ing Rights Act liability.” Brief for Appellant Jackson et al.
in No. 05–276, p. 44. This is, of course, precisely the State’s
position. Brief for State Appellees 105–106. Nor do appel
lants charge that in creating District 25 the State did more
than what was required by § 5.3 In light of these conces
sions, I do not believe a remand is necessary, and I would
affirm the judgment of the District Court.
3 Appellants argue that in Bush v. Vera, 517 U. S. 952 (1996), we did not
allow the purpose of incumbency protection in one district to justify the
use of race in a neighboring district. That is not so. What we held in
Bush was that the District Court had not clearly erred in concluding that,
although the State had political incumbent-protection purposes as well, its
use of race predominated. See id., at 969 (plurality opinion). We then
applied strict scrutiny, as I do here. But we said nothing more about
incumbency protection as part of that analysis. Rather, we rejected the
State’s argument that compliance with § 5 was a compelling interest be
cause the State had gone beyond mere nonretrogression. Id., at 983; id.,
at 1003 (Thomas, J., joined by Scalia, J., concurring in judgment).