(Slip Opinion) OCTOBER TERM, 2008 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
BARTLETT, EXECUTIVE DIRECTOR OF NORTH
CAROLINA STATE BOARD OF ELECTIONS, ET AL. v.
STRICKLAND ET AL.
CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA
No. 07–689. Argued October 14, 2008—Decided March 9, 2009
Despite the North Carolina Constitution’s “Whole County Provision”
prohibiting the General Assembly from dividing counties when draw
ing its own legislative districts, in 1991 the legislature drew House
District 18 to include portions of four counties, including Pender
County, for the asserted purpose of satisfying §2 of the Voting Rights
Act of 1965. At that time, District 18 was a geographically compact
majority-minority district. By the time the district was to be redrawn
in 2003, the African-American voting-age population in District 18
had fallen below 50 percent. Rather than redrawing the district to
keep Pender County whole, the legislators split portions of it and an
other county. District 18’s African-American voting-age population is
now 39.36 percent. Keeping Pender County whole would have re
sulted in an African-American voting-age population of 35.33 percent.
The legislators’ rationale was that splitting Pender County gave Afri
can-American voters the potential to join with majority voters to elect
the minority group’s candidate of choice, while leaving Pender
County whole would have violated §2 of the Voting Rights Act.
Pender County and others filed suit, alleging that the redistricting
plan violated the Whole County Provision. The state-official defen
dants answered that dividing Pender County was required by §2.
The trial court first considered whether the defendants had estab
lished the three threshold requirements for §2 liability under Thorn
burg v. Gingles, 478 U. S. 30, 51, only the first of which is relevant
here: whether the minority group “is sufficiently large and geographi
cally compact to constitute a majority in a single-member district.”
The court concluded that although African-Americans were not a ma
jority of District 18’s voting-age population, the district was a “de
2 BARTLETT v. STRICKLAND
Syllabus
facto” majority-minority district because African-Americans could get
enough support from crossover majority voters to elect their preferred
candidate. The court ultimately determined, based on the totality of
the circumstances, that §2 required that Pender County be split, and
it sustained District 18’s lines on that rationale. The State Supreme
Court reversed, holding that a minority group must constitute a nu
merical majority of the voting-age population in an area before §2 re
quires the creation of a legislative district to prevent dilution of that
group’s votes. Because African-Americans did not have such a nu
merical majority in District 18, the court ordered the legislature to
redraw the district.
Held: The judgment is affirmed.
361 N. C. 491, 649 S. E. 2d 364, affirmed.
JUSTICE KENNEDY, joined by THE CHIEF JUSTICE and JUSTICE ALITO,
concluded that §2 does not require state officials to draw election
district lines to allow a racial minority that would make up less than
50 percent of the voting-age population in the redrawn district to join
with crossover voters to elect the minority’s candidate of choice.
Pp. 5–21.
1. As amended in 1982, §2 provides that a violation “is established
if, based on the totality of circumstances, it is shown that the [elec
tion] processes . . . in the State or political subdivision are not equally
open to participation by members of a [protected] class [who] have
less opportunity than other members of the electorate to participate
in the political process and to elect representatives of their choice.”
42 U. S. C. §1973(b). Construing the amended §2 in Gingles, supra,
at 50–51, the Court identified three “necessary preconditions” for a
claim that the use of multimember districts constituted actionable
vote dilution. It later held that those requirements apply equally in
§2 cases involving single-member districts. Growe v. Emison, 507
U. S. 25, 40–41. Only when a party has established the requirements
does a court proceed to analyze whether a §2 violation has occurred
based on the totality of the circumstances. See, e.g., Johnson v. De
Grandy, 512 U. S. 997, 1013. Pp. 5–7.
2. Only when a geographically compact group of minority voters
could form a majority in a single-member district has the first
Gingles requirement been met. Pp. 7–21.
(a) A party asserting §2 liability must show by a preponderance
of the evidence that the minority population in the potential election
district is greater than 50 percent. The Court has held both that §2
can require the creation of a “majority-minority” district, in which a
minority group composes a numerical, working majority of the voting
age population, see, e.g., Voinovich v. Quilter, 507 U. S. 146, 154–155,
and that §2 does not require the creation of an “influence” district, in
Cite as: 556 U. S. ____ (2009) 3
Syllabus
which a minority group can influence the outcome of an election even
if its preferred candidate cannot be elected, see League of United
Latin American Citizens v. Perry, 548 U. S. 399, ___ (LULAC). This
case involves an intermediate, “crossover” district, in which the mi
nority makes up less than a majority of the voting-age population,
but is large enough to elect the candidate of its choice with help from
majority voters who cross over to support the minority’s preferred
candidate. Petitioners’ theory that such districts satisfy the first
Gingles requirement is contrary to §2, which requires a showing that
minorities “have less opportunity than other members of the elector
ate to . . . elect representatives of their choice,” 42 U. S. C. §1973(b).
Because they form only 39 percent of District 18’s voting-age popula
tion, African-Americans standing alone have no better or worse op
portunity to elect a candidate than any other group with the same
relative voting strength. Recognizing a §2 claim where minority vot
ers cannot elect their candidate of choice based on their own votes
and without assistance from others would grant special protection to
their right to form political coalitions that is not authorized by the
section. Nor does the reasoning of this Court’s cases support peti
tioners’ claims. In Voinovich, for example, the Court stated that the
first Gingles requirement “would have to be modified or eliminated”
to allow crossover-district claims. 507 U. S., at 158. Indeed, manda
tory recognition of such claims would create serious tension with the
third Gingles requirement, that the majority votes as a bloc to defeat
minority-preferred candidates, see 478 U. S., at 50–51, and would call
into question the entire Gingles framework. On the other hand, the
Court finds support for the clear line drawn by the majority-minority
requirement in the need for workable standards and sound judicial
and legislative administration. By contrast, if §2 required crossover
districts, determining whether a §2 claim would lie would require
courts to make complex political predictions and tie them to race
based assumptions. Heightening these concerns is the fact that be
cause §2 applies nationwide to every jurisdiction required to draw
election-district lines under state or local law, crossover-district
claims would require courts to make predictive political judgments
not only about familiar, two-party contests in large districts but also
about regional and local elections. Unlike any of the standards pro
posed to allow crossover claims, the majority-minority rule relies on
an objective, numerical test: Do minorities make up more than 50
percent of the voting-age population in the relevant geographic area?
Given §2’s text, the Court’s cases interpreting that provision, and the
many difficulties in assessing §2 claims without the restraint and
guidance provided by the majority-minority rule, all of the federal
courts of appeals that have interpreted the first Gingles factor have
4 BARTLETT v. STRICKLAND
Syllabus
required a majority-minority standard. The Court declines to depart
from that uniform interpretation, which has stood for more than 20
years. Because this case does not involve allegations of intentional
and wrongful conduct, the Court need not consider whether inten
tional discrimination affects the Gingles analysis. Pp. 7–15.
(b) Arguing for a less restrictive interpretation, petitioners point
to §2’s guarantee that political processes be “equally open to partici
pation” to protect minority voters’ “opportunity . . . to elect represen
tatives of their choice,” 42 U. S. C. §1973(b), and assert that such
“opportunit[ies]” occur in crossover districts and require protection.
But petitioners emphasize the word “opportunity” at the expense of
the word “equally.” The statute does not protect any possible oppor
tunity through which minority voters could work with other constitu
encies to elect their candidate of choice. Section 2 does not guarantee
minority voters an electoral advantage. Minority groups in crossover
districts have the same opportunity to elect their candidate as any
other political group with the same relative voting strength. The ma
jority-minority rule, furthermore, is not at odds with §2’s totality-of
the-circumstances test. See, e.g., Growe, supra, at 40. Any doubt as
to whether §2 calls for this rule is resolved by applying the canon of
constitutional avoidance to steer clear of serious constitutional con
cerns under the Equal Protection Clause. See Clark v. Martinez, 543
U. S. 371, 381–382. Such concerns would be raised if §2 were inter
preted to require crossover districts throughout the Nation, thereby
“unnecessarily infus[ing] race into virtually every redistricting.”
LULAC, supra, at 446. Pp. 16–18.
(c) This holding does not consider the permissibility of crossover
districts as a matter of legislative choice or discretion. Section 2 al
lows States to choose their own method of complying with the Voting
Rights Act, which may include drawing crossover districts. See Geor
gia v. Ashcroft, 539 U. S. 461, 480–482. Moreover, the holding should
not be interpreted to entrench majority-minority districts by statu
tory command, for that, too, could pose constitutional concerns. See,
e.g., Miller v. Johnson, 515 U. S. 900. Such districts are only re
quired if all three Gingles factors are met and if §2 applies based on
the totality of the circumstances. A claim similar to petitioners’ as
sertion that the majority-minority rule is inconsistent with §5 was re
jected in LULAC, supra, at ___. Pp. 19–21.
JUSTICE THOMAS, joined by JUSTICE SCALIA, adhered to his view in
Holder v. Hall, 512 U. S. 874, 891, 893 (opinion concurring in judg
ment), that the text of §2 of the Voting Rights Act of 1965 does not
authorize any vote dilution claim, regardless of the size of the minor
ity population in a given district. The Thornburg v. Gingles, 478
U. S. 30, framework for analyzing such claims has no basis in §2’s
Cite as: 556 U. S. ____ (2009) 5
Syllabus
text and “has produced . . . a disastrous misadventure in judicial poli
cymaking,” Holder, supra, at 893. P. 1.
KENNEDY, J., announced the judgment of the Court and delivered an
opinion, in which ROBERTS, C. J., and ALITO, J., joined. THOMAS, J., filed
an opinion concurring in the judgment, in which SCALIA, J., joined.
SOUTER, J., filed a dissenting opinion, in which STEVENS, GINSBURG, and
BREYER, JJ., joined. GINSBURG, J., and BREYER, J., filed dissenting
opinions.
Cite as: 556 U. S. ____ (2009) 1
Opinion of KENNEDY, J.
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–689
_________________
GARY BARTLETT, EXECUTIVE DIRECTOR OF THE
NORTH CAROLINA STATE BOARD OF ELECTIONS,
ET AL., PETITIONERS v. DWIGHT
STRICKLAND ET AL.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF NORTH
CAROLINA
[March 9, 2009]
JUSTICE KENNEDY announced the judgment of the Court
and delivered an opinion, in which THE CHIEF JUSTICE
and JUSTICE ALITO join.
This case requires us to interpret §2 of the Voting
Rights Act of 1965, 79 Stat. 437, as amended, 42 U. S. C.
§1973 (2000 ed.). The question is whether the statute can
be invoked to require state officials to draw election
district lines to allow a racial minority to join with other
voters to elect the minority’s candidate of choice, even
where the racial minority is less than 50 percent of the
voting-age population in the district to be drawn. To use
election-law terminology: In a district that is not a major
ity-minority district, if a racial minority could elect its
candidate of choice with support from crossover majority
voters, can §2 require the district to be drawn to accom
modate this potential?
I
The case arises in a somewhat unusual posture. State
authorities who created a district now invoke the Voting
2 BARTLETT v. STRICKLAND
Opinion of KENNEDY, J.
Rights Act as a defense. They argue that §2 required
them to draw the district in question in a particular way,
despite state laws to the contrary. The state laws are
provisions of the North Carolina Constitution that pro
hibit the General Assembly from dividing counties when
drawing legislative districts for the State House and Sen
ate. Art. II, §§3, 5. We will adopt the term used by the
state courts and refer to both sections of the state consti
tution as the Whole County Provision. See Pender County
v. Bartlett, 361 N. C. 491, 493, 649 S. E. 2d 364, 366 (2007)
(case below).
It is common ground that state election-law require
ments like the Whole County Provision may be superseded
by federal law—for instance, the one-person, one-vote
principle of the Equal Protection Clause of the United
States Constitution. See Reynolds v. Sims, 377 U. S. 533
(1964). Here the question is whether §2 of the Voting
Rights Act requires district lines to be drawn that other
wise would violate the Whole County Provision. That, in
turn, depends on how the statute is interpreted.
We begin with the election district. The North Carolina
House of Representatives is the larger of the two cham
bers in the State’s General Assembly. District 18 of that
body lies in the southeastern part of North Carolina.
Starting in 1991, the General Assembly drew District 18
to include portions of four counties, including Pender
County, in order to create a district with a majority Afri
can-American voting-age population and to satisfy the
Voting Rights Act. Following the 2000 census, the North
Carolina Supreme Court, to comply with the Whole
County Provision, rejected the General Assembly’s first
two statewide redistricting plans. See Stephenson v.
Bartlett, 355 N. C. 354, 375, 562 S. E. 2d 377, 392, stay
denied, 535 U. S. 1301 (2002) (Rehnquist, C. J., in cham
bers); Stephenson v. Bartlett, 357 N. C. 301, 314, 582
S. E. 2d 247, 254 (2003).
Cite as: 556 U. S. ____ (2009) 3
Opinion of KENNEDY, J.
District 18 in its present form emerged from the General
Assembly’s third redistricting attempt, in 2003. By that
time the African-American voting-age population had
fallen below 50 percent in the district as then drawn, and
the General Assembly no longer could draw a geographi
cally compact majority-minority district. Rather than
draw District 18 to keep Pender County whole, however,
the General Assembly drew it by splitting portions of
Pender and New Hanover counties. District 18 has an
African-American voting-age population of 39.36 percent.
App. 139. Had it left Pender County whole, the General
Assembly could have drawn District 18 with an African-
American voting-age population of 35.33 percent. Id., at
73. The General Assembly’s reason for splitting Pender
County was to give African-American voters the potential
to join with majority voters to elect the minority group’s
candidate of its choice. Ibid. Failure to do so, state offi
cials now submit, would have diluted the minority group’s
voting strength in violation of §2.
In May 2004, Pender County and the five members of its
Board of Commissioners filed the instant suit in North
Carolina state court against the Governor of North Caro
lina, the Director of the State Board of Elections, and
other state officials. The plaintiffs alleged that the 2003
plan violated the Whole County Provision by splitting
Pender County into two House districts. App. 5–14. The
state-official defendants answered that dividing Pender
County was required by §2. Id., at 25. As the trial court
recognized, the procedural posture of this case differs from
most §2 cases. Here the defendants raise §2 as a defense.
As a result, the trial court stated, they are “in the unusual
position” of bearing the burden of proving that a §2 viola
tion would have occurred absent splitting Pender County
to draw District 18. App. to Pet. for Cert. 90a.
The trial court first considered whether the defendant
state officials had established the three threshold re
4 BARTLETT v. STRICKLAND
Opinion of KENNEDY, J.
quirements for §2 liability under Thornburg v. Gingles,
478 U. S. 30, 50–51 (1986)—namely, (1) that the minority
group “is sufficiently large and geographically compact to
constitute a majority in a single-member district,” (2) that
the minority group is “politically cohesive,” and (3) “that
the white majority votes sufficiently as a bloc to enable it
. . . usually to defeat the minority’s preferred candidate.”
As to the first Gingles requirement, the trial court con
cluded that, although African-Americans were not a ma
jority of the voting-age population in District 18, the dis
trict was a “de facto” majority-minority district because
African-Americans could get enough support from cross
over majority voters to elect the African-Americans’ pre
ferred candidate. The court ruled that African-Americans
in District 18 were politically cohesive, thus satisfying the
second requirement. And later, the plaintiffs stipulated
that the third Gingles requirement was met. App. to Pet.
for Cert. at 102a–103a, 130a. The court then determined,
based on the totality of the circumstances, that §2 re
quired the General Assembly to split Pender County. The
court sustained the lines for District 18 on that rationale.
Id., at 116a–118a.
Three of the Pender County Commissioners appealed
the trial court’s ruling that the defendants had established
the first Gingles requirement. The Supreme Court of
North Carolina reversed. It held that a “minority group
must constitute a numerical majority of the voting popula
tion in the area under consideration before Section 2 . . .
requires the creation of a legislative district to prevent
dilution of the votes of that minority group.” 361 N. C., at
502, 649 S. E. 2d, at 371. On that premise the State Su
preme Court determined District 18 was not mandated by
§2 because African-Americans do not “constitute a nu
merical majority of citizens of voting age.” Id., at 507, 649
S. E. 2d, at 374. It ordered the General Assembly to re
draw District 18. Id., at 510, 649 S. E. 2d, at 376.
Cite as: 556 U. S. ____ (2009) 5
Opinion of KENNEDY, J.
We granted certiorari, 552 U. S. ___ (2008), and now
affirm.
II
Passage of the Voting Rights Act of 1965 was an impor
tant step in the struggle to end discriminatory treatment
of minorities who seek to exercise one of the most funda
mental rights of our citizens: the right to vote. Though the
Act as a whole was the subject of debate and controversy,
§2 prompted little criticism. The likely explanation for its
general acceptance is that, as first enacted, §2 tracked, in
part, the text of the Fifteenth Amendment. It prohibited
practices “imposed or applied by any State or political
subdivision to deny or abridge the right of any citizen of
the United States to vote on account of race or color.” 79
Stat. 437; cf. U. S. Const., Amdt. 15 (“The right of citizens
of the United States to vote shall not be denied or abridged
by the United States or by any State on account of race,
color, or previous condition of servitude”); see also S. Rep.
No. 162, 89th Cong., 1st Sess., pt. 3, pp. 19–20 (1965). In
Mobile v. Bolden, 446 U. S. 55, 60–61 (1980), this Court
held that §2, as it then read, “no more than elaborates
upon . . . the Fifteenth Amendment” and was “intended to
have an effect no different from that of the Fifteenth
Amendment itself.”
In 1982, after the Mobile ruling, Congress amended §2,
giving the statute its current form. The original Act had
employed an intent requirement, prohibiting only those
practices “imposed or applied . . . to deny or abridge” the
right to vote. 79 Stat. 437. The amended version of §2
requires consideration of effects, as it prohibits practices
“imposed or applied . . . in a manner which results in a
denial or abridgment” of the right to vote. 96 Stat. 134, 42
U. S. C. §1973(a) (2000 ed.). The 1982 amendments also
added a subsection, §2(b), providing a test for determining
whether a §2 violation has occurred. The relevant text of
6 BARTLETT v. STRICKLAND
Opinion of KENNEDY, J.
the statute now states:
“(a) No voting qualification or prerequisite to voting
or standard, practice, or procedure shall be imposed or
applied by any State or political subdivision in a
manner which results in a denial or abridgement of
the right of any citizen of the United States to vote on
account of race or color [or membership in a language
minority group], as provided in subsection (b) of this
section.
“(b) A violation of subsection (a) of this section is
established if, based on the totality of circumstances,
it is shown that the political processes leading to
nomination or election in the State or political subdi
vision are not equally open to participation by mem
bers of a class of citizens protected by subsection (a) of
this section in that its members have less opportunity
than other members of the electorate to participate in
the political process and to elect representatives of
their choice.” 42 U. S. C. §1973.
This Court first construed the amended version of §2 in
Thornburg v. Gingles, 478 U. S. 30 (1986). In Gingles, the
plaintiffs were African-American residents of North Caro
lina who alleged that multimember districts diluted mi
nority voting strength by submerging black voters into the
white majority, denying them an opportunity to elect a
candidate of their choice. The Court identified three
“necessary preconditions” for a claim that the use of mul
timember districts constituted actionable vote dilution
under §2: (1) The minority group must be “sufficiently
large and geographically compact to constitute a majority
in a single-member district,” (2) the minority group must
be “politically cohesive,” and (3) the majority must vote
“sufficiently as a bloc to enable it . . . usually to defeat the
minority’s preferred candidate.” Id., at 50–51.
The Court later held that the three Gingles require
Cite as: 556 U. S. ____ (2009) 7
Opinion of KENNEDY, J.
ments apply equally in §2 cases involving single-member
districts, such as a claim alleging vote dilution because a
geographically compact minority group has been split
between two or more single-member districts. Growe v.
Emison, 507 U. S. 25, 40–41 (1993). In a §2 case, only
when a party has established the Gingles requirements
does a court proceed to analyze whether a violation has
occurred based on the totality of the circumstances.
Gingles, supra, at 79; see also Johnson v. De Grandy, 512
U. S. 997, 1013 (1994).
III
A
This case turns on whether the first Gingles require
ment can be satisfied when the minority group makes up
less than 50 percent of the voting-age population in the
potential election district. The parties agree on all other
parts of the Gingles analysis, so the dispositive question
is: What size minority group is sufficient to satisfy the
first Gingles requirement?
At the outset the answer might not appear difficult to
reach, for the Gingles Court said the minority group must
“demonstrate that it is sufficiently large and geographi
cally compact to constitute a majority in a single-member
district.” 478 U. S., at 50. This would seem to end the
matter, as it indicates the minority group must demon
strate it can constitute “a majority.” But in Gingles and
again in Growe the Court reserved what it considered to
be a separate question—whether, “when a plaintiff alleges
that a voting practice or procedure impairs a minority’s
ability to influence, rather than alter, election results, a
showing of geographical compactness of a minority group
not sufficiently large to constitute a majority will suffice.”
Growe, supra, at 41, n. 5; see also Gingles, supra, at 46–
47, n. 12. The Court has since applied the Gingles re
quirements in §2 cases but has declined to decide the
8 BARTLETT v. STRICKLAND
Opinion of KENNEDY, J.
minimum size minority group necessary to satisfy the first
requirement. See Voinovich v. Quilter, 507 U. S. 146, 154
(1993); De Grandy, supra, at 1009; League of United Latin
American Citizens v. Perry, 548 U. S. 399, 443 (2006)
(opinion of KENNEDY, J.) (LULAC). We must consider the
minimum-size question in this case.
It is appropriate to review the terminology often used to
describe various features of election districts in relation to
the requirements of the Voting Rights Act. In majority
minority districts, a minority group composes a numerical,
working majority of the voting-age population. Under
present doctrine, §2 can require the creation of these
districts. See, e.g., Voinovich, supra, at 154 (“Placing
black voters in a district in which they constitute a size
able and therefore ‘safe’ majority ensures that they are
able to elect their candidate of choice”); but see Holder v.
Hall, 512 U. S. 874, 922–923 (1994) (THOMAS, J., concur
ring in judgment). At the other end of the spectrum are
influence districts, in which a minority group can influ
ence the outcome of an election even if its preferred candi
date cannot be elected. This Court has held that §2 does
not require the creation of influence districts. LULAC,
supra, at 445 (opinion of KENNEDY, J.).
The present case involves an intermediate type of dis
trict—a so-called crossover district. Like an influence
district, a crossover district is one in which minority voters
make up less than a majority of the voting-age population.
But in a crossover district, the minority population, at
least potentially, is large enough to elect the candidate of
its choice with help from voters who are members of the
majority and who cross over to support the minority’s
preferred candidate. 361 N. C., at 501–502, 649 S. E. 2d,
at 371 (case below). This Court has referred sometimes to
crossover districts as “coalitional” districts, in recognition
of the necessary coalition between minority and crossover
majority voters. See Georgia v. Ashcroft, 539 U. S. 461,
Cite as: 556 U. S. ____ (2009) 9
Opinion of KENNEDY, J.
483 (2003); see also Pildes, Is Voting Rights Law Now at
War with Itself? Social Science and Voting Rights in the
2000s, 80 N. C. L. Rev. 1517, 1539 (2002) (hereinafter
Pildes). But that term risks confusion with coalition
district claims in which two minority groups form a coali
tion to elect the candidate of the coalition’s choice. See,
e.g., Nixon v. Kent County, 76 F. 3d 1381, 1393 (CA6 1996)
(en banc). We do not address that type of coalition district
here. The petitioners in the present case (the state offi
cials who were the defendants in the trial court) argue
that §2 requires a crossover district, in which minority
voters might be able to persuade some members of the
majority to cross over and join with them.
Petitioners argue that although crossover districts do
not include a numerical majority of minority voters, they
still satisfy the first Gingles requirement because they are
“effective minority districts.” Under petitioners’ theory
keeping Pender County whole would have violated §2 by
cracking the potential crossover district that they drew as
District 18. See Gingles, 478 U. S., at 46, n. 11 (vote dilu
tion “may be caused by the dispersal of blacks into dis
tricts in which they constitute an ineffective minority of
voters”). So, petitioners contend, §2 required them to
override state law and split Pender County, drawing
District 18 with an African-American voting-age popula
tion of 39.36 percent rather than keeping Pender County
whole and leaving District 18 with an African-American
voting-age population of 35.33 percent. We reject that
claim.
First, we conclude, the petitioners’ theory is contrary to
the mandate of §2. The statute requires a showing that
minorities “have less opportunity than other members of
the electorate to . . . elect representatives of their choice.”
42 U. S. C. §1973(b) (2000 ed.). But because they form
only 39 percent of the voting-age population in District 18,
African-Americans standing alone have no better or worse
10 BARTLETT v. STRICKLAND
Opinion of KENNEDY, J.
opportunity to elect a candidate than does any other group
of voters with the same relative voting strength. That is,
African-Americans in District 18 have the opportunity to
join other voters—including other racial minorities, or
whites, or both—to reach a majority and elect their pre
ferred candidate. They cannot, however, elect that candi
date based on their own votes and without assistance from
others. Recognizing a §2 claim in this circumstance would
grant minority voters “a right to preserve their strength
for the purposes of forging an advantageous political
alliance.” Hall v. Virginia, 385 F. 3d 421, 431 (CA4 2004);
see also Voinovich, supra, at 154 (minorities in crossover
districts “could not dictate electoral outcomes independ
ently”). Nothing in §2 grants special protection to a mi
nority group’s right to form political coalitions. “[M]inority
voters are not immune from the obligation to pull, haul,
and trade to find common political ground.” De Grandy,
512 U. S., at 1020.
Although the Court has reserved the question we con
front today and has cautioned that the Gingles require
ments “cannot be applied mechanically,” Voinovich, supra,
at 158, the reasoning of our cases does not support peti
tioners’ claims. Section 2 does not impose on those who
draw election districts a duty to give minority voters the
most potential, or the best potential, to elect a candidate
by attracting crossover voters. In setting out the first
requirement for §2 claims, the Gingles Court explained
that “[u]nless minority voters possess the potential to elect
representatives in the absence of the challenged structure
or practice, they cannot claim to have been injured by that
structure or practice.” 478 U. S., at 50, n. 17. The Growe
Court stated that the first Gingles requirement is “needed
to establish that the minority has the potential to elect a
representative of its own choice in some single-member
district.” 507 U. S., at 40. Without such a showing, “there
neither has been a wrong nor can be a remedy.” Id., at 41.
Cite as: 556 U. S. ____ (2009) 11
Opinion of KENNEDY, J.
There is a difference between a racial minority group’s
“own choice” and the choice made by a coalition. In Voino
vich, the Court stated that the first Gingles requirement
“would have to be modified or eliminated” to allow cross
over-district claims. 507 U. S., at 158. Only once, in dicta,
has this Court framed the first Gingles requirement as
anything other than a majority-minority rule. See
De Grandy, 512 U. S., at 1008 (requiring “a sufficiently
large minority population to elect candidates of its
choice”). And in the same case, the Court rejected the
proposition, inherent in petitioners’ claim here, that §2
entitles minority groups to the maximum possible voting
strength:
“[R]eading §2 to define dilution as any failure to
maximize tends to obscure the very object of the stat
ute and to run counter to its textually stated purpose.
One may suspect vote dilution from political famine,
but one is not entitled to suspect (much less infer) di
lution from mere failure to guarantee a political
feast.” Id., at 1016–1017.
Allowing crossover-district claims would require us to
revise and reformulate the Gingles threshold inquiry that
has been the baseline of our §2 jurisprudence. Mandatory
recognition of claims in which success for a minority de
pends upon crossover majority voters would create serious
tension with the third Gingles requirement that the ma
jority votes as a bloc to defeat minority-preferred candi
dates. It is difficult to see how the majority-bloc-voting
requirement could be met in a district where, by defini
tion, white voters join in sufficient numbers with minority
voters to elect the minority’s preferred candidate. (We are
skeptical that the bloc-voting test could be satisfied here,
for example, where minority voters in District 18 cannot
elect their candidate of choice without support from almost
20 percent of white voters. We do not confront that issue,
12 BARTLETT v. STRICKLAND
Opinion of KENNEDY, J.
however, because for some reason respondents conceded
the third Gingles requirement in state court.)
As the Gingles Court explained, “in the absence of sig
nificant white bloc voting it cannot be said that the ability
of minority voters to elect their chosen representatives is
inferior to that of white voters.” 478 U. S., at 49, n. 15.
Were the Court to adopt petitioners’ theory and dispense
with the majority-minority requirement, the ruling would
call in question the Gingles framework the Court has
applied under §2. See LULAC, 548 U. S., at 490, n. 8.
(SOUTER, J., concurring in part and dissenting in part)
(“All aspects of our established analysis for majority
minority districts in Gingles and its progeny may have to
be rethought in analyzing ostensible coalition districts”);
cf. Metts v. Murphy, 363 F. 3d 8, 12 (CA1 2004) (en banc)
(per curiam) (allowing influence-district claim to survive
motion to dismiss but noting “there is tension in this case
for plaintiffs in any effort to satisfy both the first and third
prong of Gingles”).
We find support for the majority-minority requirement
in the need for workable standards and sound judicial and
legislative administration. The rule draws clear lines for
courts and legislatures alike. The same cannot be said of
a less exacting standard that would mandate crossover
districts under §2. Determining whether a §2 claim would
lie—i.e., determining whether potential districts could
function as crossover districts—would place courts in the
untenable position of predicting many political variables
and tying them to race-based assumptions. The judiciary
would be directed to make predictions or adopt premises
that even experienced polling analysts and political ex
perts could not assess with certainty, particularly over the
long term. For example, courts would be required to
pursue these inquiries: What percentage of white voters
supported minority-preferred candidates in the past? How
reliable would the crossover votes be in future elections?
Cite as: 556 U. S. ____ (2009) 13
Opinion of KENNEDY, J.
What types of candidates have white and minority voters
supported together in the past and will those trends con
tinue? Were past crossover votes based on incumbency
and did that depend on race? What are the historical
turnout rates among white and minority voters and will
they stay the same? Those questions are speculative, and
the answers (if they could be supposed) would prove elu
sive. A requirement to draw election districts on answers
to these and like inquiries ought not to be inferred from
the text or purpose of §2. Though courts are capable of
making refined and exacting factual inquiries, they “are
inherently ill-equipped” to “make decisions based on
highly political judgments” of the sort that crossover
district claims would require. Holder, 512 U. S., at 894
(THOMAS, J., concurring in judgment). There is an under
lying principle of fundamental importance: We must be
most cautious before interpreting a statute to require
courts to make inquiries based on racial classifications
and race-based predictions. The statutory mandate peti
tioners urge us to find in §2 raises serious constitutional
questions. See infra, at 16–18.
Heightening these concerns even further is the fact that
§2 applies nationwide to every jurisdiction that must draw
lines for election districts required by state or local law.
Crossover-district claims would require courts to make
predictive political judgments not only about familiar, two
party contests in large districts but also about regional
and local jurisdictions that often feature more than two
parties or candidates. Under petitioners’ view courts
would face the difficult task of discerning crossover pat
terns in nonpartisan contests for a city commission, a
school board, or a local water authority. The political data
necessary to make such determinations are nonexistent
for elections in most of those jurisdictions. And predic
tions would be speculative at best given that, especially in
the context of local elections, voters’ personal affiliations
14 BARTLETT v. STRICKLAND
Opinion of KENNEDY, J.
with candidates and views on particular issues can play a
large role.
Unlike any of the standards proposed to allow crossover
district claims, the majority-minority rule relies on an
objective, numerical test: Do minorities make up more
than 50 percent of the voting-age population in the rele
vant geographic area? That rule provides straightforward
guidance to courts and to those officials charged with
drawing district lines to comply with §2. See LULAC,
supra, at 485 (opinion of SOUTER, J.) (recognizing need for
“clear-edged rule”). Where an election district could be
drawn in which minority voters form a majority but such a
district is not drawn, or where a majority-minority district
is cracked by assigning some voters elsewhere, then—
assuming the other Gingles factors are also satisfied—
denial of the opportunity to elect a candidate of choice is a
present and discernible wrong that is not subject to the
high degree of speculation and prediction attendant upon
the analysis of crossover claims. Not an arbitrary inven
tion, the majority-minority rule has its foundation in
principles of democratic governance. The special signifi
cance, in the democratic process, of a majority means it is
a special wrong when a minority group has 50 percent or
more of the voting population and could constitute a com
pact voting majority but, despite racially polarized bloc
voting, that group is not put into a district.
Given the text of §2, our cases interpreting that provi
sion, and the many difficulties in assessing §2 claims
without the restraint and guidance provided by the major
ity-minority rule, no federal court of appeals has held that
§2 requires creation of coalition districts. Instead, all to
consider the question have interpreted the first Gingles
factor to require a majority-minority standard. See Hall,
385 F. 3d, at 427–430 (CA4 2004), cert. denied, 544 U. S.
961 (2005); Valdespino v. Alamo Heights Independent
School Dist., 168 F. 3d 848, 852–853 (CA5 1999), cert.
Cite as: 556 U. S. ____ (2009) 15
Opinion of KENNEDY, J.
denied, 528 U. S. 1114 (2000); Cousin v. Sundquist, 145
F. 3d 818, 828–829 (CA6 1998), cert. denied, 525 U. S.
1138 (1999); Sanchez v. Colorado, 97 F. 3d 1303, 1311–
1312 (CA10 1996), cert. denied, 520 U. S. 1229 (1997);
Romero v. Pomona, 883 F. 2d 1418, 1424, n. 7, 1425–1426
(CA9 1989), overruled on other grounds, 914 F. 2d 1136,
1141 (CA9 1990); McNeil v. Springfield Park Dist., 851
F. 2d 937, 947 (CA7 1988), cert. denied, 490 U. S. 1031
(1989). Cf. Metts, 363 F. 3d, at 11 (expressing unwilling
ness “at the complaint stage to foreclose the possibility” of
influence-district claims). We decline to depart from the
uniform interpretation of §2 that has guided federal courts
and state and local officials for more than 20 years.
To be sure, the Gingles requirements “cannot be applied
mechanically and without regard to the nature of the
claim.” Voinovich, 507 U. S., at 158. It remains the rule,
however, that a party asserting §2 liability must show by
a preponderance of the evidence that the minority popula
tion in the potential election district is greater than 50
percent. No one contends that the African-American
voting-age population in District 18 exceeds that thresh
old. Nor does this case involve allegations of intentional
and wrongful conduct. We therefore need not consider
whether intentional discrimination affects the Gingles
analysis. Cf. Brief for United States as Amicus Curiae 14
(evidence of discriminatory intent “tends to suggest that
the jurisdiction is not providing an equal opportunity to
minority voters to elect the representative of their choice,
and it is therefore unnecessary to consider the majority
minority requirement before proceeding to the ultimate
totality-of-the-circumstances analysis”); see also Garza v.
County of Los Angeles, 918 F. 2d 763, 771 (CA9 1990).
Our holding does not apply to cases in which there is
intentional discrimination against a racial minority.
16 BARTLETT v. STRICKLAND
Opinion of KENNEDY, J.
B
In arguing for a less restrictive interpretation of the
first Gingles requirement petitioners point to the text of §2
and its guarantee that political processes be “equally open
to participation” to protect minority voters’ “opportunity
. . . to elect representatives of their choice.” 42 U. S. C.
§1973(b) (2000 ed.). An “opportunity,” petitioners argue,
occurs in crossover districts as well as majority-minority
districts; and these extended opportunities, they say,
require §2 protection.
But petitioners put emphasis on the word “opportunity”
at the expense of the word “equally.” The statute does not
protect any possible opportunity or mechanism through
which minority voters could work with other constituen
cies to elect their candidate of choice. Section 2 does not
guarantee minority voters an electoral advantage. Minor
ity groups in crossover districts cannot form a voting
majority without crossover voters. In those districts mi
nority voters have the same opportunity to elect their
candidate as any other political group with the same
relative voting strength.
The majority-minority rule, furthermore, is not at odds
with §2’s totality-of-the-circumstances test. The Court in
De Grandy confirmed “the error of treating the three
Gingles conditions as exhausting the enquiry required by
§2.” 512 U. S., at 1013. Instead the Gingles requirements
are preconditions, consistent with the text and purpose of
§2, to help courts determine which claims could meet the
totality-of-the-circumstances standard for a §2 violation.
See Growe, 507 U. S., at 40 (describing the “Gingles
threshold factors”).
To the extent there is any doubt whether §2 calls for the
majority-minority rule, we resolve that doubt by avoiding
serious constitutional concerns under the Equal Protection
Clause. See Clark v. Martinez, 543 U. S. 371, 381–382
(2005) (canon of constitutional avoidance is “a tool for
Cite as: 556 U. S. ____ (2009) 17
Opinion of KENNEDY, J.
choosing between competing plausible interpretations of a
statutory text, resting on the reasonable presumption that
Congress did not intend the alternative which raises
serious constitutional doubts”). Of course, the “moral
imperative of racial neutrality is the driving force of the
Equal Protection Clause,” and racial classifications are
permitted only “as a last resort.” Richmond v. J. A. Cro
son Co., 488 U. S. 469, 518, 519 (1989) (KENNEDY, J.,
concurring in part and concurring in judgment). “Racial
classifications with respect to voting carry particular
dangers. Racial gerrymandering, even for remedial pur
poses, may balkanize us into competing racial factions; it
threatens to carry us further from the goal of a political
system in which race no longer matters—a goal that the
Fourteenth and Fifteenth Amendments embody, and to
which the Nation continues to aspire.” Shaw v. Reno, 509
U. S. 630, 657 (1993). If §2 were interpreted to require
crossover districts throughout the Nation, “it would un
necessarily infuse race into virtually every redistricting,
raising serious constitutional questions.” LULAC, 548
U. S., at 446 (opinion of KENNEDY, J.); see also Ashcroft,
539 U. S., at 491 (KENNEDY, J., concurring). That inter
pretation would result in a substantial increase in the
number of mandatory districts drawn with race as “the
predominant factor motivating the legislature’s decision.”
Miller v. Johnson, 515 U. S. 900, 916 (1995).
On petitioners’ view of the case courts and legislatures
would need to scrutinize every factor that enters into
districting to gauge its effect on crossover voting. Inject
ing this racial measure into the nationwide districting
process would be of particular concern with respect to
consideration of party registration or party influence. The
easiest and most likely alliance for a group of minority
voters is one with a political party, and some have sug
gested using minority voters’ strength within a particular
party as the proper yardstick under the first Gingles
18 BARTLETT v. STRICKLAND
Opinion of KENNEDY, J.
requirement. See, e.g., LULAC, supra, at 485–486 (opin
ion of SOUTER, J.) (requiring only “that minority voters . . .
constitute a majority of those voting in the primary of . . .
the party tending to win in the general election”). That
approach would replace an objective, administrable rule
with a difficult “judicial inquiry into party rules and local
politics” to determine whether a minority group truly
“controls” the dominant party’s primary process.
McLoughlin, Gingles in Limbo: Coalitional Districts, Party
Primaries and Manageable Vote Dilution Claims, 80
N. Y. U. L. Rev. 312, 349 (2005). More troubling still is
the inquiry’s fusion of race and party affiliation as a de
terminant when partisan considerations themselves may
be suspect in the drawing of district lines. See Vieth v.
Jubelirer, 541 U. S. 267, 317 (2004) (STEVENS, J., dissent
ing); id., at 316 (KENNEDY, J., concurring in judgment);
see also Pildes 1565 (crossover-district requirement would
essentially result in political party “entitlement to . . . a
certain number of seats”). Disregarding the majority
minority rule and relying on a combination of race and
party to presume an effective majority would involve the
law and courts in a perilous enterprise. It would rest on
judicial predictions, as a matter of law, that race and
party would hold together as an effective majority over
time—at least for the decennial apportionment cycles and
likely beyond. And thus would the relationship between
race and party further distort and frustrate the search for
neutral factors and principled rationales for districting.
Petitioners’ approach would reverse the canon of avoid
ance. It invites the divisive constitutional questions that
are both unnecessary and contrary to the purposes of our
precedents under the Voting Rights Act. Given the conse
quences of extending racial considerations even further
into the districting process, we must not interpret §2 to
require crossover districts.
Cite as: 556 U. S. ____ (2009) 19
Opinion of KENNEDY, J.
C
Our holding that §2 does not require crossover districts
does not consider the permissibility of such districts as a
matter of legislative choice or discretion. Assuming a
majority-minority district with a substantial minority
population, a legislative determination, based on proper
factors, to create two crossover districts may serve to
diminish the significance and influence of race by encour
aging minority and majority voters to work together to
ward a common goal. The option to draw such districts
gives legislatures a choice that can lead to less racial
isolation, not more. And as the Court has noted in the
context of §5 of the Voting Rights Act, “various studies
have suggested that the most effective way to maximize
minority voting strength may be to create more influence
or [crossover] districts.” Ashcroft, 539 U. S., at 482. Much
like §5, §2 allows States to choose their own method of
complying with the Voting Rights Act, and we have said
that may include drawing crossover districts. See id., at
480–483. When we address the mandate of §2, however,
we must note it is not concerned with maximizing minor
ity voting strength, De Grandy, 512 U. S., at 1022; and, as
a statutory matter, §2 does not mandate creating or pre
serving crossover districts.
Our holding also should not be interpreted to entrench
majority-minority districts by statutory command, for
that, too, could pose constitutional concerns. See Miller v.
Johnson, supra; Shaw v. Reno, supra. States that wish to
draw crossover districts are free to do so where no other
prohibition exists. Majority-minority districts are only
required if all three Gingles factors are met and if §2
applies based on a totality of the circumstances. In areas
with substantial crossover voting it is unlikely that the
plaintiffs would be able to establish the third Gingles
precondition—bloc voting by majority voters. See supra,
at 11. In those areas majority-minority districts would not
20 BARTLETT v. STRICKLAND
Opinion of KENNEDY, J.
be required in the first place; and in the exercise of lawful
discretion States could draw crossover districts as they
deemed appropriate. See Pildes 1567 (“Districts could still
be designed in such places that encouraged coalitions
across racial lines, but these districts would result from
legislative choice, not . . . obligation”). States can—and in
proper cases should—defend against alleged §2 violations
by pointing to crossover voting patterns and to effective
crossover districts. Those can be evidence, for example, of
diminished bloc voting under the third Gingles factor or of
equal political opportunity under the §2 totality-of-the
circumstances analysis. And if there were a showing that
a State intentionally drew district lines in order to destroy
otherwise effective crossover districts, that would raise
serious questions under both the Fourteenth and Fifteenth
Amendments. See Reno v. Bossier Parish School Bd., 520
U. S. 471, 481–482 (1997); Brief for United States as
Amicus Curiae 13–14. There is no evidence of discrimina
tory intent in this case, however. Our holding recognizes
only that there is no support for the claim that §2
can require the creation of crossover districts in the first
instance.
Petitioners claim the majority-minority rule is inconsis
tent with §5, but we rejected a similar argument in
LULAC, 548 U. S., at 446 (opinion of KENNEDY, J.). The
inquiries under §§2 and 5 are different. Section 2 con
cerns minority groups’ opportunity “to elect representa
tives of their choice,” 42 U. S. C. §1973(b) (2000 ed.), while
the more stringent §5 asks whether a change has the
purpose or effect of “denying or abridging the right to
vote,” §1973c. See LULAC, supra, at 446; Bossier Parish,
supra, at 476–480. In LULAC, we held that although the
presence of influence districts is relevant for the §5 retro
gression analysis, “the lack of such districts cannot estab
lish a §2 violation.” 548 U. S., at 446 (opinion of
KENNEDY, J.); see also Ashcroft, 539 U. S., at 482–483.
Cite as: 556 U. S. ____ (2009) 21
Opinion of KENNEDY, J.
The same analysis applies for crossover districts: Section 5
“leaves room” for States to employ crossover districts, id.,
at 483, but §2 does not require them.
IV
Some commentators suggest that racially polarized
voting is waning—as evidenced by, for example, the elec
tion of minority candidates where a majority of voters are
white. See Note, The Future of Majority-Minority Dis
tricts in Light of Declining Racially Polarized Voting, 116
Harv. L. Rev. 2208, 2209 (2003); see also id., at 2216–
2222; Pildes 1529–1539; Bullock & Dunn, The Demise of
Racial Districting and the Future of Black Representation,
48 Emory L. J. 1209 (1999). Still, racial discrimination
and racially polarized voting are not ancient history.
Much remains to be done to ensure that citizens of all
races have equal opportunity to share and participate in
our democratic processes and traditions; and §2 must be
interpreted to ensure that continued progress.
It would be an irony, however, if §2 were interpreted to
entrench racial differences by expanding a “statute meant
to hasten the waning of racism in American politics.”
De Grandy, supra, at 1020. Crossover districts are, by
definition, the result of white voters joining forces with
minority voters to elect their preferred candidate. The
Voting Rights Act was passed to foster this cooperation.
We decline now to expand the reaches of §2 to require, by
force of law, the voluntary cooperation our society has
achieved. Only when a geographically compact group of
minority voters could form a majority in a single-member
district has the first Gingles requirement been met.
The judgment of the Supreme Court of North Carolina is
affirmed.
It is so ordered.
Cite as: 556 U. S. ____ (2009) 1
THOMAS, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–689
_________________
GARY BARTLETT, EXECUTIVE DIRECTOR OF THE
NORTH CAROLINA STATE BOARD OF ELECTIONS,
ET AL., PETITIONERS v. DWIGHT
STRICKLAND ET AL.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF NORTH
CAROLINA
[March 9, 2009]
JUSTICE THOMAS, with whom JUSTICE SCALIA joins,
concurring in the judgment.
I continue to adhere to the views expressed in my opin
ion in Holder v. Hall, 512 U. S. 874, 891 (1994) (opinion
concurring in judgment). The text of §2 of the Voting
Rights Act of 1965 does not authorize any vote dilution
claim, regardless of the size of the minority population in a
given district. See 42 U. S. C. §1973(a) (2000 ed.) (permit
ting only a challenge to a “voting qualification or prerequi
site to voting or standard, practice, or procedure”); see also
Holder, supra, at 893 (stating that the terms “ ‘standard,
practice, or procedure’ ” “reach only state enactments that
limit citizens’ access to the ballot”). I continue to disagree,
therefore, with the framework set forth in Thornburg v.
Gingles, 478 U. S. 30 (1986), for analyzing vote dilution
claims because it has no basis in the text of §2. I would
not evaluate any Voting Rights Act claim under a test that
“has produced such a disastrous misadventure in judicial
policymaking.” Holder, supra, at 893. For these reasons, I
concur only in the judgment.
Cite as: 556 U. S. ____ (2009) 1
SOUTER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–689
_________________
GARY BARTLETT, EXECUTIVE DIRECTOR OF THE
NORTH CAROLINA STATE BOARD OF ELECTIONS,
ET AL., PETITIONERS v. DWIGHT
STRICKLAND ET AL.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF NORTH
CAROLINA
[March 9, 2009]
JUSTICE SOUTER, with whom JUSTICE STEVENS,
JUSTICE GINSBURG, and JUSTICE BREYER join, dissenting.
The question in this case is whether a minority with
under 50% of the voting population of a proposed voting
district can ever qualify under §2 of the Voting Rights Act
of 1965 (VRA) as residents of a putative district whose
minority voters would have an opportunity “to elect repre
sentatives of their choice.” 42 U. S. C. §1973(b) (2000 ed.).
If the answer is no, minority voters in such a district will
have no right to claim relief under §2 from a statewide
districting scheme that dilutes minority voting rights. I
would hold that the answer in law as well as in fact is
sometimes yes: a district may be a minority-opportunity
district so long as a cohesive minority population is large
enough to elect its chosen candidate when combined with
a reliable number of crossover voters from an otherwise
polarized majority.
In the plurality’s view, only a district with a minority
population making up 50% or more of the citizen voting
age population (CVAP) can provide a remedy to minority
voters lacking an opportunity “to elect representatives of
their choice.” This is incorrect as a factual matter if the
statutory phrase is given its natural meaning; minority
2 BARTLETT v. STRICKLAND
SOUTER, J., dissenting
voters in districts with minority populations under 50%
routinely “elect representatives of their choice.” The
effects of the plurality’s unwillingness to face this fact are
disturbing by any measure and flatly at odds with the
obvious purpose of the Act. If districts with minority
populations under 50% can never count as minority
opportunity districts to remedy a violation of the States’
obligation to provide equal electoral opportunity under §2,
States will be required under the plurality’s rule to pack
black voters into additional majority-minority districts,
contracting the number of districts where racial minorities
are having success in transcending racial divisions in
securing their preferred representation. The object of the
Voting Rights Act will now be promoting racial blocs, and
the role of race in districting decisions as a proxy for po
litical identification will be heightened by any measure.
I
Recalling the basic premises of vote-dilution claims
under §2 will show just how far astray the plurality has
gone. Section 2 of the VRA prohibits districting practices
that “resul[t] in a denial or abridgement of the right of any
citizen of the United States to vote on account of race.” 42
U. S. C. §1973(a). A denial or abridgment is established if,
“based on the totality of circumstances,” it is shown that
members of a racial minority “have less opportunity than
other members of the electorate to participate in the po
litical process and to elect representatives of their choice.”
§1973(b).
Since §2 was amended in 1982, 96 Stat. 134, we have
read it to prohibit practices that result in “vote dilution,”
see Thornburg v. Gingles, 478 U. S. 30 (1986), understood
as distributing politically cohesive minority voters through
voting districts in ways that reduce their potential
strength. See id., at 47–48. There are two classic pat
terns. Where voting is racially polarized, a districting
Cite as: 556 U. S. ____ (2009) 3
SOUTER, J., dissenting
plan can systemically discount the minority vote either “by
the dispersal of blacks into districts in which they consti
tute an ineffective minority of voters” or from “the concen
tration of blacks into districts where they constitute an
excessive majority,” so as to eliminate their influence in
neighboring districts. Id., at 46, n. 11. Treating dilution
as a remediable harm recognizes that §2 protects not
merely the right of minority voters to put ballots in a box,
but to claim a fair number of districts in which their votes
can be effective. See id., at 47.
Three points follow. First, to speak of a fair chance to
get the representation desired, there must be an identifi
able baseline for measuring a group’s voting strength. Id.,
at 88 (O’Connor, J., concurring in judgment) (“In order to
evaluate a claim that a particular multimember district or
single-member district has diluted the minority group’s
voting strength to a degree that violates §2, . . . it is . . .
necessary to construct a measure of ‘undiluted’ minority
voting strength”). Several baselines can be imagined; one
could, for example, compare a minority’s voting strength
under a particular districting plan with the maximum
strength possible under any alternative.1 Not surpris
ingly, we have conclusively rejected this approach; the
VRA was passed to guarantee minority voters a fair game,
——————
1 We have previously illustrated this in stylized fashion:
“Assume a hypothetical jurisdiction of 1,000 voters divided into 10
districts of 100 each, where members of a minority group make up 40
percent of the voting population and voting is totally polarized along
racial lines. With the right geographic dispersion to satisfy the com
pactness requirement, and with careful manipulation of district lines,
the minority voters might be placed in control of as many as 7 of the 10
districts. Each such district could be drawn with at least 51 members
of the minority group, and whether the remaining minority voters were
added to the groupings of 51 for safety or scattered in the other three
districts, minority voters would be able to elect candidates of their
choice in all seven districts.” Johnson v. De Grandy, 512 U. S. 997,
1016 (1994).
4 BARTLETT v. STRICKLAND
SOUTER, J., dissenting
not a killing. See Johnson v. De Grandy, 512 U. S. 997,
1016–1017 (1994). We have held that the better baseline
for measuring opportunity to elect under §2, although not
dispositive, is the minority’s rough proportion of the rele
vant population. Id., at 1013–1023. Thus, in assessing §2
claims under a totality of the circumstances, including the
facts of history and geography, the starting point is a
comparison of the number of districts where minority
voters can elect their chosen candidate with the group’s
population percentage. Ibid; see also League of United
Latin American Citizens v. Perry, 548 U. S. 399, 436 (2006)
(LULAC) (“We proceed now to the totality of the circum
stances, and first to the proportionality inquiry, comparing
the percentage of total districts that are [minority] oppor
tunity districts with the [minority] share of the citizen
voting-age population”).2
Second, the significance of proportionality means that a
§2 claim must be assessed by looking at the overall effect
of a multidistrict plan. A State with one congressional
seat cannot dilute a minority’s congressional vote, and
only the systemic submergence of minority votes where a
number of single-member districts could be drawn can be
treated as harm under §2. So a §2 complaint must look to
an entire districting plan (normally, statewide), alleging
that the challenged plan creates an insufficient number of
minority-opportunity districts in the territory as a whole.
See id., at 436–437.
Third, while a §2 violation ultimately results from the
——————
2 Ofcourse, this does not create an entitlement to proportionate mi
nority representation. Nothing in the statute promises electoral
success. Rather, §2 simply provides that, subject to qualifications
based on a totality of circumstances, minority voters are entitled to a
practical chance to compete in a roughly proportionate number of
districts. Id., at 1014, n. 11. “[M]inority voters are not immune from
the obligation to pull, haul, and trade to find common political ground.”
Id., at 1020.
Cite as: 556 U. S. ____ (2009) 5
SOUTER, J., dissenting
dilutive effect of a districting plan as a whole, a §2 plain
tiff must also be able to place himself in a reasonably
compact district that could have been drawn to improve
upon the plan actually selected. See, e.g., De Grandy,
supra, at 1001–1002. That is, a plaintiff must show both
an overall deficiency and a personal injury open to redress.
Our first essay at understanding these features of statu
tory vote dilution was Thornburg v. Gingles, which asked
whether a multimember district plan for choosing repre
sentatives by at-large voting deprived minority voters of
an equal opportunity to elect their preferred candidates.
In answering, we set three now-familiar conditions that a
§2 claim must meet at the threshold before a court will
analyze it under the totality of circumstances:
“First, the minority group must be able to demon
strate that it is sufficiently large and geographically
compact to constitute a majority in a single-member
district. . . . Second, the minority group must be able
to show that it is politically cohesive. . . . Third, the
minority must be able to demonstrate that the white
majority votes sufficiently as a bloc to enable it . . .
usually to defeat the minority’s preferred candidate.”
478 U. S., at 50–51.
As we have emphasized over and over, the Gingles
conditions do not state the ultimate standard under §2,
nor could they, since the totality of the circumstances
standard has been set explicitly by Congress. See LULAC,
supra, at 425–426; De Grandy, supra, at 1011. Instead,
each condition serves as a gatekeeper, ensuring that a
plaintiff who proceeds to plenary review has a real chance
to show a redressable violation of the ultimate §2 stan
dard. The third condition, majority racial bloc voting, is
necessary to establish the premise of vote-dilution claims:
that the minority as a whole is placed at a disadvantage
owing to race, not the happenstance of independent poli
6 BARTLETT v. STRICKLAND
SOUTER, J., dissenting
tics. Gingles, 478 U. S., at 51. The second, minority cohe
sion, is there to show that minority voters will vote to
gether to elect a distinct representative of choice. Ibid.
And the first, a large and geographically compact minority
population, is the condition for demonstrating that a
dilutive plan injures the §2 plaintiffs by failing to draw an
available remedial district that would give them a chance
to elect their chosen candidate. Growe v. Emison, 507
U. S. 25, 40–41 (1993); Gingles, supra, at 50.
II
Though this case arose under the Constitution of North
Carolina, the dispositive issue is one of federal statutory
law: whether a district with a minority population under
50%, but large enough to elect its chosen candidate with
the help of majority voters disposed to support the minor
ity favorite, can ever count as a district where minority
voters have the opportunity “to elect representatives of
their choice” for purposes of §2. I think it clear from the
nature of a vote-dilution claim and the text of §2 that the
answer must be yes. There is nothing in the statutory text
to suggest that Congress meant to protect minority oppor
tunity to elect solely by the creation of majority-minority
districts. See Voinovich v. Quilter, 507 U. S. 146, 155
(1993) (“[Section 2] says nothing about majority-minority
districts”). On the contrary, §2 “focuses exclusively on the
consequences of apportionment,” ibid., as Congress made
clear when it explicitly prescribed the ultimate functional
approach: a totality of the circumstances test. See 42
U. S. C. §1973(b) (“A violation . . . is established if, based
on the totality of circumstances, it is shown . . .”). And a
functional analysis leaves no doubt that crossover districts
vindicate the interest expressly protected by §2: the oppor
tunity to elect a desired representative.
It has been apparent from the moment the Court first
took up §2 that no reason exists in the statute to treat a
Cite as: 556 U. S. ____ (2009) 7
SOUTER, J., dissenting
crossover district as a less legitimate remedy for dilution
than a majority-minority one (let alone to rule it out). See
Gingles, supra, at 90, n. 1 (O’Connor, J., concurring in
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 . . . enable
the election of the candidates its members prefer, that
minority group would appear to have demonstrated that,
at least under this measure of its voting strength, it would
be able to elect some candidates of its choice”); see also
Pildes, Is Voting-Rights Law Now at War with Itself?
Social Science and Voting Rights in the 2000s, 80 N. C.
L. Rev. 1517, 1553 (2002) (hereinafter Pildes) (“What
should be so magical, then, about whether there are
enough black voters to become a formal majority so that a
conventional ‘safe’ district can be created? If a safe and a
coalition district have the same probability of electing a
black candidate, are they not functionally identical, by
definition, with respect to electing such candidates?”).
As these earlier comments as much as say, whether a
district with a minority population under 50% of CVAP
may redress a violation of §2 is a question of fact with an
obvious answer: of course minority voters constituting less
than 50% of the voting population can have an opportunity
to elect the candidates of their choice, as amply shown by
empirical studies confirming that such minority groups
regularly elect their preferred candidates with the help of
modest crossover by members of the majority. See, e.g.,
id., at 1531–1534, 1538. The North Carolina Supreme
Court for example, determined that voting districts with a
black voting age population of as little as 38.37% have an
opportunity to elect black candidates, Pender Cty. v. Bart
lett, 361 N. C. 491, 494–495, 649 S. E. 2d 364, 366–367
(2007), a factual finding that has gone unchallenged and is
well supported by electoral results in North Carolina. Of
the nine House districts in which blacks make up more
8 BARTLETT v. STRICKLAND
SOUTER, J., dissenting
than 50% of the voting age population (VAP), all but two
elected a black representative in the 2004 election. See
App. 109. Of the 12 additional House districts in which
blacks are over 39% of the VAP, all but one elected a black
representative in the 2004 election. Ibid. It would surely
surprise legislators in North Carolina to suggest that
black voters in these 12 districts cannot possibly have an
opportunity to “elect [the] representatives of their choice.”
It is of course true that the threshold population suffi
cient to provide minority voters with an opportunity to
elect their candidates of choice is elastic, and the propor
tions will likely shift in the future, as they have in the
past. See Pildes 1527–1532 (explaining that blacks in the
1980s required well over 50% of the population in a dis
trict to elect the candidates of their choice, but that this
number has gradually fallen to well below 50%); id., at
1527, n. 26 (stating that some courts went so far as to
refer to 65% “as a ‘rule of thumb’ for the black population
required to constitute a safe district”). That is, racial
polarization has declined, and if it continues downward
the first Gingles condition will get easier to satisfy.
But this is no reason to create an arbitrary threshold;
the functional approach will continue to allow dismissal of
claims for districts with minority populations too small to
demonstrate an ability to elect, and with “crossovers” too
numerous to allow an inference of vote dilution in the first
place. No one, for example, would argue based on the
record of experience in this case that a district with a 25%
black population would meet the first Gingles condition.
And the third Gingles requirement, majority-bloc voting,
may well provide an analytical limit to claims based on
crossover districts. See LULAC, 548 U. S., at 490, n. 8
(SOUTER, J., concurring in part and dissenting in part)
(noting the interrelationship of the first and third Gingles
factors); see also post, at 1–5 (BREYER, J., dissenting)
(looking to the third Gingles condition to suggest a
Cite as: 556 U. S. ____ (2009) 9
SOUTER, J., dissenting
mathematical limit to the minority population necessary
for a cognizable crossover district). But whatever this
limit may be, we have no need to set it here, since the
respondent state officials have stipulated to majority-bloc
voting, App. to Pet. for Cert. 130a. In sum, §2 addresses
voting realities, and for practical purposes a 39%-minority
district in which we know minorities have the potential to
elect their preferred candidate is every bit as good as a
50%-minority district.
In fact, a crossover district is better. Recognizing cross
over districts has the value of giving States greater flexi
bility to draw districting plans with a fair number of
minority-opportunity districts, and this in turn allows for
a beneficent reduction in the number of majority-minority
districts with their “quintessentially race-conscious calcu
lus,” De Grandy, 512 U. S., at 1020, thereby moderating
reliance on race as an exclusive determinant in districting
decisions, cf. Shaw v. Reno, 509 U. S. 630 (1993). See also
Pildes 1547–1548 (“In contrast to the Court’s concerns
with bizarrely designed safe districts, it is hard to see how
coalitional districts could ‘convey the message that politi
cal identity is, or should be, predominantly racial.’ . . .
Coalitional districts would seem to encourage and require
a kind of integrative, cross-racial political alliance that
might be thought consistent with, even the very ideal of,
both the VRA and the U. S. Constitution” (quoting Bush v.
Vera, 517 U. S. 952, 980 (1996))). A crossover is thus
superior to a majority-minority district precisely because
it requires polarized factions to break out of the mold and
form the coalitions that discourage racial divisions.
III
A
The plurality’s contrary conclusion that §2 does not
recognize a crossover claim is based on a fundamental
misunderstanding of vote-dilution claims, a mistake
10 BARTLETT v. STRICKLAND
SOUTER, J., dissenting
epitomized in the following assessment of the crossover
district in question:
“[B]ecause they form only 39 percent of the voting-age
population in District 18, African-Americans standing
alone have no better or worse opportunity to elect a
candidate than does any other group of voters with
the same relative voting strength [in District 18].”
Ante, at 9–10.
See also ante, at 16 (“[In crossover districts,] minority
voters have the same opportunity to elect their candidate
as any other political group with the same relative voting
strength”).
The claim that another political group in a particular
district might have the same relative voting strength as
the minority if it had the same share of the population
takes the form of a tautology: the plurality simply looks to
one district and says that a 39% group of blacks is no
worse off than a 39% group of whites would be. This
statement might be true, or it might not be, and standing
alone it demonstrates nothing.
Even if the two 39% groups were assumed to be compa
rable in fact because they will attract sufficient crossover
(and so should be credited with satisfying the first Gingles
condition), neither of them could prove a §2 violation
without looking beyond the 39% district and showing a
disproportionately small potential for success in the
State’s overall configuration of districts. As this Court has
explained before, the ultimate question in a §2 case (that
is, whether the minority group in question is being denied
an equal opportunity to participate and elect) can be an
swered only by examining the broader pattern of districts
to see whether the minority is being denied a roughly
proportionate opportunity. See LULAC, 548 U. S., at 436–
437. Hence, saying one group’s 39% equals another’s, even
if true in particular districts where facts are known, does
Cite as: 556 U. S. ____ (2009) 11
SOUTER, J., dissenting
not mean that either, both, or neither group could show a
§2 violation. The plurality simply fails to grasp that an
alleged §2 violation can only be proved or disproved by
looking statewide.
B
The plurality’s more specific justifications for its coun
terfactual position are no more supportable than its 39%
tautology.
1
The plurality seems to suggest that our prior cases
somehow require its conclusion that a minority population
under 50% will never support a §2 remedy, emphasizing
that Gingles spoke of a majority and referred to the re
quirement that minority voters have “ ‘the potential to
elect’ ” their chosen representatives. Ante, at 10 (quoting,
Gingles, 478 U. S., at 50, n. 17). It is hard to know what to
make of this point since the plurality also concedes that
we have explicitly and repeatedly reserved decision on
today’s question. See LULAC, supra, at 443 (plurality
opinion); De Grandy, 512 U. S., at 1009; Voinovich, 507
U. S., at 154; Growe, 507 U. S., at 41, n. 5; Gingles, supra,
at 46–47, n. 12. In fact, in our more recent cases applying
§2, Court majorities have formulated the first Gingles
prong in a way more consistent with a functional ap
proach. See LULAC, supra, at 430 (“[I]n the context of a
challenge to the drawing of district lines, ‘the first Gingles
condition requires the possibility of creating more than the
existing number of reasonably compact districts with a
sufficiently large minority population to elect candidates
of its choice’ ” (quoting De Grandy, supra, at 1008)). These
Court majorities get short shrift from today’s plurality.
In any event, even if we ignored Gingles’s reservation of
today’s question and looked to Gingles’s “potential to elect”
as if it were statutory text, I fail to see how that phrase
12 BARTLETT v. STRICKLAND
SOUTER, J., dissenting
dictates that a minority’s ability to compete must be
singlehanded in order to count under §2. As explained
already, a crossover district serves the same interest in
obtaining representation as a majority-minority district;
the potential of 45% with a 6% crossover promises the
same result as 51% with no crossover, and there is nothing
in the logic of §2 to allow a distinction between the two
types of district.
In fact, the plurality’s distinction is artificial on its own
terms. In the past, when black voter registration and
black voter turnout were relatively low, even black voters
with 55% of a district’s CVAP would have had to rely on
crossover voters to elect their candidate of choice. See
Pildes 1527–1528. But no one on this Court (and, so far as
I am aware, any other court addressing it) ever suggested
that reliance on crossover voting in such a district ren
dered minority success any less significant under §2, or
meant that the district failed to satisfy the first Gingles
factor. Nor would it be any answer to say that black vot
ers in such a district, assuming unrealistic voter turnout,
theoretically had the “potential” to elect their candidate
without crossover support; that would be about as relevant
as arguing in the abstract that a black CVAP of 45% is
potentially successful, on the assumption that black voters
could turn out en masse to elect the candidate of their
choice without reliance on crossovers if enough majority
voters stay home.
2
The plurality is also concerned that recognizing the
“potential” of anything under 50% would entail an expo
nential expansion of special minority districting; the plu
rality goes so far as to suggest that recognizing crossover
districts as possible minority-opportunity districts would
inherently “entitl[e] minority groups to the maximum
possible voting strength.” Ante, at 11. But this conclusion
Cite as: 556 U. S. ____ (2009) 13
SOUTER, J., dissenting
again reflects a confusion of the gatekeeping function of
the Gingles conditions with the ultimate test for relief
under §2. See ante, at 9–10 (“African-Americans standing
alone have no better or worse opportunity to elect a candi
date than does any other group of voters with the same
relative voting strength”).
As already explained, supra, at 5–6, the mere fact that
all threshold Gingles conditions could be met and a district
could be drawn with a minority population sufficiently
large to elect the candidate of its choice does not require
drawing such a district. This case simply is about the first
Gingles condition, not about the number of minority
opportunity districts needed under §2, and accepting
Bartlett’s position would in no way imply an obligation to
maximize districts with minority voter potential. Under
any interpretation of the first Gingles factor, the State
must draw districts in a way that provides minority voters
with a fair number of districts in which they have an
opportunity to elect candidates of their choice; the only
question here is which districts will count toward that
total.
3
The plurality’s fear of maximization finds a parallel in
the concern that treating crossover districts as minority
opportunity districts would “create serious tension” with
the third Gingles prerequisite of majority-bloc voting.
Ante, at 11. The plurality finds “[i]t . . . difficult to see how
the majority-bloc-voting requirement could be met in a
district where, by definition, white voters join in sufficient
numbers with minority voters to elect the minority’s pre
ferred candidate.” Ibid.
It is not difficult to see. If a minority population with
49% of the CVAP can elect the candidate of its choice with
crossover by 2% of white voters, the minority “by defini
tion” relies on white support to elect its preferred candi
14 BARTLETT v. STRICKLAND
SOUTER, J., dissenting
date. But this fact alone would raise no doubt, as a matter
of definition or otherwise, that the majority-bloc-voting
requirement could be met, since as much as 98% of the
majority may have voted against the minority’s candidate
of choice. As explained above, supra, at 8, the third
Gingles condition may well impose an analytical floor to
the minority population and a ceiling on the degree of
crossover allowed in a crossover district; that is, the con
cept of majority-bloc voting requires that majority voters
tend to stick together in a relatively high degree. The
precise standard for determining majority-bloc voting is
not at issue in this case, however; to refute the plurality’s
50% rule, one need only recognize that racial cohesion of
98% would be bloc voting by any standard.3
4
The plurality argues that qualifying crossover districts
as minority-opportunity districts would be less adminis
trable than demanding 50%, forcing courts to engage with
the various factual and predictive questions that would
come up in determining what percentage of majority vot
ers would provide the voting minority with a chance at
electoral success. Ante, at 12–13. But claims based on a
State’s failure to draw majority-minority districts raise the
——————
3 This case is an entirely inappropriate vehicle for speculation about a
more exact definition of majority-bloc voting. See supra, at 8–9. The
political science literature has developed statistical methods for assess
ing the extent of majority-bloc voting that are far more nuanced than
the plurality’s 50% rule. See, e.g., Pildes 1534–1535 (describing a
“falloff rate” that social scientists use to measure the comparative rate
at which whites vote for black Democratic candidates compared to
white Democratic candidates and noting that the falloff rate for con
gressional elections during the 1990s in North Carolina was 9%). But
this issue was never briefed in this case and is not before us, the
respondents having stipulated to the existence of majority-bloc voting,
App. to Pet. for Cert. 130a, and there is no reason to attempt to accom
plish in this case through the first Gingles factor what would actually
be a quantification of the third.
Cite as: 556 U. S. ____ (2009) 15
SOUTER, J., dissenting
same issues of judicial judgment; even when the 50%
threshold is satisfied, a court will still have to engage in
factually messy enquiries about the “potential” such a
district may afford, the degree of minority cohesion and
majority-bloc voting, and the existence of vote-dilution
under a totality of the circumstances. See supra, at 5–6, 8.
The plurality’s rule, therefore, conserves an uncertain
amount of judicial resources, and only at the expense of
ignoring a class of §2 claims that this Court has no author
ity to strike from the statute’s coverage.
5
The plurality again misunderstands the nature of §2 in
suggesting that its rule does not conflict with what the
Court said in Georgia v. Ashcroft, 539 U. S. 461, 480–482
(2003): that crossover districts count as minority
opportunity districts for the purpose of assessing whether
minorities have the opportunity “to elect their preferred
candidates of choice” under §5 of the VRA, 42 U. S. C. A.
§1973c(b) (Supp. 2008). While the plurality is, of course,
correct that there are differences between the enquiries
under §2 and §5, ante, at 20, those differences do not save
today’s decision from inconsistency with the prior pro
nouncement. A districting plan violates §5 if it diminishes
the ability of minority voters to “elect their preferred
candidates of choice,” §1973c(b), as measured against the
minority’s previous electoral opportunity, Ashcroft, supra,
at 477. A districting plan violates §2 if it diminishes the
ability of minority voters to “elect representatives of their
choice,” 42 U. S. C. §1973(b) (2000 ed.), as measured under
a totality of the circumstances against a baseline of rough
proportionality. It makes no sense to say that a crossover
district counts as a minority-opportunity district when
comparing the past and the present under §5, but not
when comparing the present and the possible under §2.
16 BARTLETT v. STRICKLAND
SOUTER, J., dissenting
6
Finally, the plurality tries to support its insistence on a
50% threshold by invoking the policy of constitutional
avoidance, which calls for construing a statute so as to
avoid a possibly unconstitutional result. The plurality
suggests that allowing a lower threshold would “require
crossover districts throughout the Nation,” ante, at 17,
thereby implicating the principle of Shaw v. Reno that
districting with an excessive reliance on race is unconsti
tutional (“excessive” now being equated by the plurality
with the frequency of creating opportunity districts). But
the plurality has it precisely backwards. A State will
inevitably draw some crossover districts as the natural
byproduct of districting based on traditional factors. If
these crossover districts count as minority-opportunity
districts, the State will be much closer to meeting its §2
obligation without any reference to race, and fewer minor
ity-opportunity districts will, therefore, need to be created
purposefully. But if, as a matter of law, only majority
minority districts provide a minority seeking equality with
the opportunity to elect its preferred candidates, the State
will have much further to go to create a sufficient number
of minority-opportunity districts, will be required to bridge
this gap by creating exclusively majority-minority dis
tricts, and will inevitably produce a districting plan that
reflects a greater focus on race. The plurality, however,
seems to believe that any reference to race in districting
poses a constitutional concern, even a State’s decision to
reduce racial blocs in favor of crossover districts. A judi
cial position with these consequences is not constitutional
avoidance.
IV
More serious than the plurality opinion’s inconsistency
with prior cases construing §2 is the perversity of the
results it portends. Consider the effect of the plurality’s
Cite as: 556 U. S. ____ (2009) 17
SOUTER, J., dissenting
rule on North Carolina’s districting scheme. Black voters
make up approximately 20% of North Carolina’s VAP4 and
are distributed throughout 120 State House districts, App.
to Pet. for Cert. 58a. As noted before, black voters consti
tute more than 50% of the VAP in 9 of these districts and
over 39% of the VAP in an additional 12. Supra, at 7–8.
Under a functional approach to §2, black voters in North
Carolina have an opportunity to elect (and regularly do
elect) the representative of their choice in as many as 21
House districts, or 17.5% of North Carolina’s total dis
tricts. See App. 109–110. North Carolina’s districting
plan is therefore close to providing black voters with pro
portionate electoral opportunity. According to the plural
ity, however, the remedy of a crossover district cannot
provide opportunity to minority voters who lack it, and the
requisite opportunity must therefore be lacking for minor
ity voters already living in districts where they must rely
on crossover. By the plurality’s reckoning, then, black
voters have an opportunity to elect representatives of their
choice in, at most, nine North Carolina House districts.
See ibid. In the plurality’s view, North Carolina must
have a long way to go before it satisfies the §2 requirement
of equal electoral opportunity.5
——————
4 Compare Dept. of Commerce, Bureau of Census, 2000 Voting Age
Population and Voting-Age Citizens (PHC–T–31) (Table 1–1), online at
http://www.census.gov/population/www/cen2000/briefs/phc-t31/index.html
(as visited March 5, 2009, and available in Clerk of Court’s case file)
(total VAP in North Carolina is 6,087,996), with id., Table 1–3 (black or
African-American VAP is 1,216,622).
5 Under the same logic, North Carolina could fracture and submerge
in majority-dominated districts the 12 districts in which black voters
constitute between 35% and 49% of the voting population and routinely
elect the candidates of their choice without ever implicating §2, and
could do so in districts not covered by §5 without implicating the VRA
at all. The untenable implications of the plurality’s rule do not end
there. The plurality declares that its holding “does not apply to cases in
which there is intentional discrimination against a racial minority.”
18 BARTLETT v. STRICKLAND
SOUTER, J., dissenting
A State like North Carolina faced with the plurality’s
opinion, whether it wants to comply with §2 or simply to
avoid litigation, will, therefore, have no reason to create
crossover districts. Section 2 recognizes no need for such
districts, from which it follows that they can neither be
required nor be created to help the State meet its obliga
tion of equal electoral opportunity under §2. And if a
legislature were induced to draw a crossover district by
the plurality’s encouragement to create them voluntarily,
ante, at 20–21, it would open itself to attack by the plural
ity based on the pointed suggestion that a policy favoring
crossover districts runs counter to Shaw. The plurality
has thus boiled §2 down to one option: the best way to
avoid suit under §2, and the only way to comply with §2, is
by drawing district lines in a way that packs minority
voters into majority-minority districts, probably eradicat
ing crossover districts in the process.
Perhaps the plurality recognizes this aberrant implica
tion, for it eventually attempts to disavow it. It asserts
that Ҥ2 allows States to choose their own method of com
plying with the Voting Rights Act, and we have said that
may include drawing crossover districts. . . . [But] §2 does
not mandate creating or preserving crossover districts.”
Ante, at 19. See also, ante, at 20 (crossover districts “can
be evidence . . . of equal political opportunity . . .”). But
this is judicial fiat, not legal reasoning; the plurality does
not even attempt to explain how a crossover district can be
a minority-opportunity district when assessing the com
pliance of a districting plan with §2, but cannot be one
——————
Ante, at 15. But the logic of the plurality’s position compels the absurd
conclusion that the invidious and intentional fracturing of crossover
districts in order to harm minority voters would not state a claim under
§2. After all, if the elimination of a crossover district can never deprive
minority voters in the district of the opportunity “to elect representa
tives of their choice,” minorities in an invidiously eliminated district
simply cannot show an injury under §2.
Cite as: 556 U. S. ____ (2009) 19
SOUTER, J., dissenting
when sought as a remedy to a §2 violation. The plurality
cannot have it both ways. If voluntarily drawing a cross
over district brings a State into compliance with §2, then
requiring creation of a crossover district must be a way to
remedy a violation of §2, and eliminating a crossover
district must in some cases take a State out of compliance
with the statute. And when the elimination of a crossover
district does cause a violation of §2, I cannot fathom why a
voter in that district should not be able to bring a claim to
remedy it.
In short, to the extent the plurality’s holding is taken to
control future results, the plurality has eliminated the
protection of §2 for the districts that best vindicate the
goals of the statute, and has done all it can to force the
States to perpetuate racially concentrated districts, the
quintessential manifestations of race consciousness in
American politics.
I respectfully dissent.
Cite as: 556 U. S. ____ (2009) 1
GINSBURG, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–689
_________________
GARY BARTLETT, EXECUTIVE DIRECTOR OF THE
NORTH CAROLINA STATE BOARD OF ELECTIONS,
ET AL., PETITIONERS v. DWIGHT
STRICKLAND ET AL.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF NORTH
CAROLINA
[March 9, 2009]
JUSTICE GINSBURG, dissenting.
I join JUSTICE SOUTER’s powerfully persuasive dissent
ing opinion, and would make concrete what is implicit in
his exposition. The plurality’s interpretation of §2 of the
Voting Rights Act of 1965 is difficult to fathom and se
verely undermines the statute’s estimable aim. Today’s
decision returns the ball to Congress’ court. The Legisla
ture has just cause to clarify beyond debate the appropri
ate reading of §2.
Cite as: 556 U. S. ____ (2009) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–689
_________________
GARY BARTLETT, EXECUTIVE DIRECTOR OF THE
NORTH CAROLINA STATE BOARD OF ELECTIONS,
ET AL., PETITIONERS v. DWIGHT
STRICKLAND ET AL.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF NORTH
CAROLINA
[March 9, 2009]
JUSTICE BREYER, dissenting.
I join JUSTICE SOUTER’s opinion in full. I write sepa
rately in light of the plurality’s claim that a bright-line
50% rule (used as a Gingles gateway) serves administra
tive objectives. In the plurality’s view, that rule amounts
to a relatively simple administrative device that will help
separate at the outset those cases that are more likely
meritorious from those that are not. Even were that
objective as critically important as the plurality believes,
however, it is not difficult to find other numerical gateway
rules that would work better.
Assume that a basic purpose of a gateway number is to
separate (1) districts where a minority group can “elect
representatives of their choice,” from (2) districts where
the minority, because of the need to obtain majority cross
over votes, can only “elect representatives” that are con
sensus candidates. 42 U. S. C. §1973(b) (2000 ed.); League
of United Latin American Citizens v. Perry, 548 U. S. 399,
445 (2006) (plurality opinion). At first blush, one might
think that a 50% rule will work in this respect. After all,
if a 50% minority population votes as a bloc, can it not
always elect the candidate of its choice? And if a minority
population constitutes less than 50% of a district, is not
2 BARTLETT v. STRICKLAND
BREYER, J., dissenting
any candidate elected from that district always a consen
sus choice of minority and majority voters? The realities
of voting behavior, however, make clear that the answer to
both these questions is “no.” See, e.g., Brief for Nathaniel
Persily et al. as Amici Curiae 5–6. (“Fifty percent is seen
as a magic number by some because under conditions of
complete racial polarization and equal rates of voting
eligibility, registration, and turnout, the minority commu
nity will be able to elect its candidate of choice. In prac
tice, such extreme conditions are never present. . . . [S]ome
districts must be more than 50% minority, while others
can be less than 50% minority, in order for the minority
community to have an equal opportunity to elect its candi
date of choice” (emphasis added)); see also ante, at 8
(SOUTER, J., dissenting).
No voting group is 100% cohesive. Except in districts
with overwhelming minority populations, some crossover
votes are often necessary. The question is how likely it is
that the need for crossover votes will force a minority to
reject its “preferred choice” in favor of a “consensus candi
date.” A 50% number does not even try to answer that
question. To the contrary, it includes, say 51% minority
districts, where imperfect cohesion may, in context, pre
vent election of the “minority-preferred” candidate, while
it excludes, say, 45% districts where a smaller but more
cohesive minority can, with the help of a small and reli
able majority crossover vote, elect its preferred candidate.
Why not use a numerical gateway rule that looks more
directly at the relevant question: Is the minority bloc large
enough, is it cohesive enough, is the necessary majority
crossover vote small enough, so that the minority (tending
to vote cohesively) can likely vote its preferred candidate
(rather than a consensus candidate) into office? See ante,
at 7 (SOUTER, J., dissenting) (“[E]mpirical studies con
firm[] that . . . minority groups” constituting less than 50%
of the voting population “regularly elect their preferred
Cite as: 556 U. S. ____ (2009) 3
BREYER, J., dissenting
candidates with the help of modest crossover by members
of the majority”); see also Pildes, Is Voting-Rights Law
Now at War With Itself? Social Science and Voting Rights
in the 2000s, 80 N. C. L. Rev. 1517, 1529–1535 (2002)
(reviewing studies showing small but reliable crossover
voting by whites in districts where minority voters have
demonstrated the ability to elect their preferred candi
dates without constituting 50% of the population in that
district). We can likely find a reasonably administrable
mathematical formula more directly tied to the factors in
question.
To take a possible example: Suppose we pick a numeri
cal ratio that requires the minority voting age population
to be twice as large as the percentage of majority crossover
votes needed to elect the minority’s preferred candidate.
We would calculate the latter (the percentage of majority
crossover votes the minority voters need) to take account
of both the percentage of minority voting age population in
the district and the cohesiveness with which they vote.
Thus, if minority voters account for 45% of the voters in a
district and 89% of those voters tend to vote cohesively as
a group, then the minority needs a crossover vote of about
20% of the majority voters to elect its preferred candidate.
(Such a district with 100 voters would have 45 minority
voters and 55 majority voters; 40 minority voters would
vote for the minority group’s preferred candidate at elec
tion time; the minority voters would need 11 more votes to
elect their preferred candidate; and 11 is about 20% of the
majority’s 55.) The larger the minority population, the
greater its cohesiveness, and thus the smaller the cross
over vote needed to assure success, the greater the likeli
hood that the minority can elect its preferred candidate
and the smaller the likelihood that the cohesive minority,
in order to find the needed majority crossover vote, must
support a consensus, rather than its preferred, candidate.
In reflecting the reality that minority voters can elect
4 BARTLETT v. STRICKLAND
BREYER, J., dissenting
the candidate of their choice when they constitute less
than 50% of a district by relying on a small majority cross
over vote, this approach is in no way contradictory, or even
in tension with, the third Gingles requirement. Since
Gingles itself, we have acknowledged that the requirement
of majority-bloc voting can be satisfied even when some
small number of majority voters crossover to support a
minority-preferred candidate. See Thornburg v. Gingles,
478 U. S. 30, 59 (1986) (finding majority-bloc voting where
the majority group supported African-American candi
dates in the general election at a rate of between 26% and
49%, with an average support of one-third). Given the
difficulty of obtaining totally accurate statistics about
cohesion, or even voting age population, the district courts
should administer the numerical ratio flexibly, opening (or
closing) the Gingles gate (in light of the probable merits of
a case) where only small variances are at issue (e.g., where
the minority group is 39% instead of 40% of a district).
But the same is true with a 50% number (e.g., where the
minority group is 49% instead of 50% of a district). See,
e.g., Brief for United States as Amicus Curiae 15.
I do not claim that the 2-to-1 ratio is a perfect rule; I
claim only that it is better than the plurality’s 50% rule.
After all, unlike 50%, a 2-to-1 ratio (of voting age minority
population to necessary non-minority crossover votes)
focuses directly upon the problem at hand, better reflects
voting realities, and consequently far better separates at
the gateway likely sheep from likely goats. See Gingles,
supra, at 45 (The Section 2 inquiry depends on a “ ‘func
tional’ view of the political process” and “ ‘a searching
practical evaluation of the past and present reality.’ ”
(quoting S. Rep. No. 97–417, p. 30, and n. 120 (1982));
Gingles, supra, at 94–95 (O’Connor, J., concurring in
judgment) (“[T]here is no indication that Congress in
tended to mandate a single, universally applicable stan
dard for measuring undiluted minority voting strength,
Cite as: 556 U. S. ____ (2009) 5
BREYER, J., dissenting
regardless of local conditions . . . ”). In most cases, the
50% rule and the 2-to-1 rule would have roughly similar
effects. Most districts where the minority voting age
population is greater than 50% will almost always satisfy
the 2-to-1 rule; and most districts where the minority
population is below 40% will almost never satisfy the 2-to
1 rule. But in districts with minority voting age popula
tions that range from 40% to 50%, the divergent ap
proaches of the two standards can make a critical differ
ence—as well they should.
In a word, JUSTICE SOUTER well explains why the ma
jority’s test is ill suited to the statute’s objectives. I add
that the test the majority adopts is ill suited to its own
administrative ends. Better gateway tests, if needed, can
be found.
With respect, I dissent.