League of United Latin American Citizens v. Perry

(Slip Opinion) OCTOBER TERM, 2005 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

LEAGUE OF UNITED LATIN AMERICAN CITIZENS

ET AL. v. PERRY, GOVERNOR OF TEXAS, ET AL.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF TEXAS

No. 05–204. Argued March 1, 2006—Decided June 28, 2006*
The 1990 census resulted in a 3-seat increase over the 27 seats previ
ously allotted the Texas congressional delegation. Although the De
mocratic Party then controlled 19 of those 27 seats, as well as both
state legislative houses and the governorship, change was in the air:
The Republican Party had received 47% of the 1990 statewide vote,
while the Democrats had received only 51%. Faced with a possible
Republican ascent to majority status, the legislature drew a congres
sional redistricting plan that favored Democratic candidates. The
Republicans challenged the 1991 Plan as an unconstitutional parti
san gerrymander, but to no avail.
The 2000 census authorized two additional seats for the Texas
delegation. The Republicans then controlled the governorship and
the State Senate, but did not yet control the State House of Repre
sentatives. So constituted, the legislature was unable to pass a redis
tricting scheme, resulting in litigation and the necessity of a court-
ordered plan to comply with the U. S. Constitution’s one-person, one-
vote requirement. Conscious that the primary responsibility for
drawing congressional districts lies with the political branches of
government, and hesitant to undo the work of one political party for
the benefit of another, the three-judge Federal District Court sought
to apply only “neutral” redistricting standards when drawing Plan
1151C, including placing the two new seats in high-growth areas, fol
——————
* Together with No. 05–254, Travis County, Texas, et al. v. Perry,
Governor of Texas, et al., No. 05–276, Jackson et al. v. Perry, Governor
of Texas, et al., and No. 05–439, GI Forum of Texas et al. v. Perry, Gov
ernor of Texas, et al., also on appeal from the same court.
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lowing county and voting precinct lines, and avoiding the pairing of
incumbents. Under Plan 1151C, the 2002 congressional elections re
sulted in a 17-to-15 Democratic majority in the Texas delegation,
compared to a 59% to 40% Republican majority in votes for statewide
office in 2000, thus leaving the 1991 Democratic gerrymander largely
in place.
In 2003, however, Texas Republicans gained control of both houses
of the legislature and set out to increase Republican representation
in the congressional delegation. After a protracted partisan struggle,
the legislature enacted a new congressional districting map, Plan
1374C. In the 2004 congressional elections, Republicans won 21
seats to the Democrats’ 11, while also obtaining 58% of the vote in
statewide races against the Democrats’ 41%. Soon after Plan 1374C
was enacted, appellants challenged it in court, alleging a host of con
stitutional and statutory violations. In 2004 the District Court en
tered judgment for appellees, but this Court vacated the decision and
remanded for consideration in light of Vieth v. Jubelirer, 541 U. S. 267.
On remand, the District Court, believing the scope of its mandate
was limited to questions of political gerrymandering, again rejected
appellants’ claims.
Held: The judgment is affirmed in part, reversed in part, and vacated in
part, and the cases are remanded.
399 F. Supp. 2d 756, affirmed in part, reversed in part, vacated in part,
and remanded.
JUSTICE KENNEDY delivered the opinion of the Court with respect to
Parts II–A and III, concluding:
1. This Court held, in Davis v. Bandemer, 478 U. S. 109, 118–127,
that an equal protection challenge to a political gerrymander pre
sents a justiciable case or controversy, although it could not agree on
what substantive standard to apply, compare id., at 127–137, with
id., at 161–162. That disagreement persists. The Vieth plurality
would have held such challenges nonjusticiable political questions,
but a majority declined to do so, see 541 U. S., at 306, 317, 343, 355.
Justiciability is not revisited here. At issue is whether appellants of
fer a manageable, reliable measure of fairness for determining
whether a partisan gerrymander is unconstitutional. P. 7.
2. Texas’ redrawing of District 23’s lines amounts to vote dilution
violative of §2 of the Voting Rights Act of 1965. Pp. 17–36.
(a) Plan 1374C’s changes to District 23 served the dual goals of
increasing Republican seats and protecting the incumbent Republi
can against an increasingly powerful Latino population that threat
ened to oust him, with the additional political nuance that he would
be reelected in a district that had a Latino majority as to voting age
population, though not a Latino majority as to citizen voting age
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population or an effective Latino voting majority. The District 23
changes required adjustments elsewhere, so the State created new
District 25 to avoid retrogression under §5 of the Act. Pp. 17–18.
(b) A State violates §2 “if, based on the totality of circumstances,
it is shown that the political processes leading to nomination or elec
tion . . . are not [as] equally open to . . . members of [a racial group as
they are to] other members of the electorate.” 42 U. S. C. §1973(b).
Thornburg v. Gingles, 478 U. S. 30, 50–51, identified three threshold
conditions for establishing a §2 violation: (1) the racial group must be
“sufficiently large and geographically compact to constitute a major
ity in a single-member district”; (2) the group must be “politically co
hesive”; and (3) the white majority must “vot[e] sufficiently as a bloc
to enable it . . . usually to defeat the minority’s preferred candidate.”
The legislative history identifies factors that courts can use, once all
three threshold requirements are met, in interpreting §2’s “totality of
circumstances” standard, including the State’s history of voting-
related discrimination, the extent to which voting is racially polar
ized, and the extent to which the State has used voting practices or
procedures that tend to enhance the opportunity for discrimination
against the minority group. See id., at 44–45. Another relevant con
sideration is whether the number of districts in which the minority
group forms an effective majority is roughly proportional to its share
of the population in the relevant area. Johnson v. De Grandy, 512
U. S. 997, 1000. The district court’s determination whether the §2
requirements are satisfied must be upheld unless clearly erroneous.
See Gingles, supra, at 78–79. Where “the ultimate finding of dilu
tion” is based on “a misreading of the governing law,” however, there
is reversible error. De Grandy, supra, at 1022. Pp. 18–20.
(c) Appellants have satisfied all three Gingles requirements as to
District 23, and the creation of new District 25 does not remedy the
problem.
The second and third Gingles factors—Latino cohesion, majority
bloc voting—are present, given the District Court’s finding of racially
polarized voting in the District 23 and throughout the State. As to
the first Gingles precondition—that the minority group be large and
compact enough to constitute a majority in a single-member district,
478 U. S., at 50—appellants have established that Latinos could have
had an opportunity district in District 23 had its lines not been al
tered and that they do not have one now. They constituted a major
ity of the citizen voting age population in District 23 under Plan
1151C. The District Court suggested incorrectly that the district was
not a Latino opportunity district in 2002 simply because the incum
bent prevailed. The fact that a group does not win elections does not
resolve the vote dilution issue. De Grandy, 512 U. S., at 1014, n. 11.
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In old District 23 the increase in Latino voter registration and overall
population, the concomitant rise in Latino voting power in each suc
cessive election, the near victory of the Latino candidate of choice in
2002, and the resulting threat to the incumbent’s continued election
were the very reasons the State redrew the district lines. Since the
redistricting prevented the immediate success of the emergent Latino
majority in District 23, there was a denial of opportunity in the real
sense of that term. Plan 1374C’s version of District 23, by contrast, is
unquestionably not a Latino opportunity district. That Latinos are
now a bare majority of the district’s voting-age population is not dis
positive, since the relevant numbers must account for citizenship in
order to determine the group’s opportunity to elect candidates, and
Latinos do not now have a citizen voting-age majority in the district.
The State’s argument that it met its §2 obligations by creating new
District 25 as an offsetting opportunity district is rejected. In a dis
trict line-drawing challenge, “the first Gingles condition requires the
possibility of creating more than the existing number of reasonably
compact districts with a sufficiently large minority population to elect
candidates of its choice.” Id., at 1008. The District Court’s finding
that the current plan contains six Latino opportunity districts and
that seven reasonably compact districts, as proposed by appellant GI
Forum, could not be drawn was not clearly erroneous. However, the
court failed to perform the required compactness inquiry between the
number of Latino opportunity districts under the challenger’s pro
posal of reinstating Plan 1151C and the “existing number of reasona
bly compact districts.” Ibid. Section 2 does not forbid the creation of
a noncompact majority-minority district, Bush v. Vera, 517 U. S. 952,
999, but such a district cannot remedy a violation elsewhere in the
State, see Shaw v. Hunt, 517 U. S. 899, 916. The lower court recog
nized there was a 300-mile gap between the two Latino communities
in District 25, and a similarly large gap between the needs and inter
ests of the two groups. The court’s conclusion that the relative
smoothness of the district lines made the district compact, despite
this combining of discrete communities of interest, is inapposite be
cause the court analyzed the issue only in the equal protection con
text, where compactness focuses on the contours of district lines to
determine whether race was the predominant factor in drawing those
lines. See Miller v. Johnson, 515 U. S. 900, 916–917. Under §2, by
contrast, the injury is vote dilution, so the compactness inquiry con
siders “the compactness of the minority population, not . . . the com
pactness of the contested district.” Vera, 517 U. S., at 997. A district
that “reaches out to grab small and apparently isolated minority com
munities” is not reasonably compact. Id., at 979. The lower court’s
findings regarding the different characteristics, needs, and interests
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of the two widely scattered Latino communities in District 23 are
well supported and uncontested. The enormous geographical dis
tances separating the two communities, coupled with the disparate
needs and interests of these populations—not either factor alone—
renders District 25 noncompact for §2 purposes. Therefore, Plan
1374C contains only five reasonably compact Latino opportunity dis
tricts, one fewer than Plan 1151C. Pp. 20–29.
(d) The totality of the circumstances demonstrates a §2 violation.
The relevant proportionality inquiry, see De Grandy, 512 U. S., at
1000, compares the percentage of total districts that are Latino op
portunity districts with the Latino share of the citizen voting-age
population. The State’s contention that proportionality should be de
cided on a regional basis is rejected in favor of appellants’ assertion
that their claim requires a statewide analysis because they have al
leged statewide vote dilution based on a statewide plan. Looking
statewide, there are 32 congressional districts. The five reasonably
compact Latino opportunity districts amount to roughly 16% of the
total, while Latinos make up 22% of Texas’ citizen voting-age popula
tion. Latinos are, therefore, two districts shy of proportional repre
sentation. Even deeming this disproportionality insubstantial would
not overcome the other evidence of vote dilution for Latinos in Dis
trict 23. The changes there undermined the progress of a racial
group that has been subject to significant voting-related discrimina
tion and that was becoming increasingly politically active and cohe
sive. Cf., e.g., id., at 1014. Against this background, the Latinos’ di
minishing electoral support for the incumbent indicates their belief
he was unresponsive to their particularized needs. In essence, the
State took away their opportunity because they were about to exer
cise it. Even accepting the District Court’s finding that the State’s
action was taken primarily for political, not racial, reasons, the re
drawing of District 23’s lines was damaging to its Latino voters. The
State not only made fruitless the Latinos’ mobilization efforts but
also acted against those Latinos who were becoming most politically
active. Although incumbency protection can be a legitimate factor in
districting, see Karcher v. Daggett, 462 U. S. 725, 740, not all of its
forms are in the interests of the constituents. If, as here, such protec
tion means excluding some voters from the district simply because
they are likely to vote against the officeholder, the change is to bene
fit the officeholder, not the voters. This policy, whatever its validity
in the political realm, cannot justify the effect on Latino voters. See
Gingles, supra, at 45. Pp. 29–36.
(e) Because Plan 1374C violates §2 in its redrawing of District
23, appellants’ First Amendment and equal protection claims with
respect to that district need not be addressed. Their equal protection
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claim as to the drawing of District 25 need not be confronted because
that district will have to be redrawn to remedy the District 23 viola
tion. Pp. 36–37.
JUSTICE KENNEDY concluded in Part II that because appellants
have established no legally impermissible use of political classifica
tions, they state no claim on which relief may be granted as to their
contention that Texas’ statewide redistricting is an unconstitutional
political gerrymander. JUSTICE SOUTER and JUSTICE GINSBURG joined
Part II–D. Pp. 7–15.
(a) Article I of the Constitution, §§2 and 4, gives “the States pri
mary responsibility for apportionment of their . . . congressional . . .
districts,” Growe v. Emison, 507 U. S. 25, 34, but §4 also permits Con
gress to set further requirements. Neither the Constitution nor Con
gress has stated any explicit prohibition of mid-decade redistricting to
change districts drawn earlier in conformance with a decennial census.
Although the legislative branch plays the primary role in congres
sional redistricting, courts have an important role when a districting
plan violates the Constitution. See, e.g., Wesberry v. Sanders, 376
U. S. 1. That the federal courts sometimes must order legislative redis
tricting, however, does not shift the primary responsibility away from
legislative bodies, see, e.g., Wise v. Lipscomb, 437 U. S. 535, 540, who
are free to replace court-mandated remedial plans by enacting redis
tricting plans of their own, see, e.g., Upham v. Seamon, 456 U. S. 37,
44. Judicial respect for legislative plans, however, cannot justify leg
islative reliance on improper criteria for districting determinations.
Pp. 7–10.
(b) Appellants claim unpersuasively that a decision to effect mid-
decennial redistricting, when solely motivated by partisan objectives,
presumptively violates equal protection and the First Amendment
because it serves no legitimate public purpose and burdens one group
because of its political opinions and affiliation. For a number of rea
sons, that test is unconvincing. There is some merit to the State’s as
sertion that partisan gain was not the sole motivation for replacing
Plan 1151C: The contours of some contested district lines seem to
have been drawn based on more mundane and local interests, and a
number of line-drawing requests by Democratic state legislators were
honored. Moreover, a successful test for identifying unconstitutional
partisan gerrymandering must do what appellants’ sole-motivation
theory explicitly disavows: show a burden, as measured by a reliable
standard, on the complainants’ representational rights. See Vieth,
supra, at 292–295, 307–308. Appellants’ sole-intent standard is no
more compelling when it is linked to the circumstance that Plan
1374C is mid-decennial legislation. The Constitution’s text and
structure and this Court’s cases indicate there is nothing inherently
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suspect about a legislature’s decision to replace mid-decade a court-
ordered plan with one of its own. Even if there were, the fact of mid-
decade redistricting alone is no sure indication of unlawful political
gerrymanders. Appellants’ test would leave untouched the 1991
Texas redistricting, which entrenched a party on the verge of minor
ity status, while striking down the 2003 redistricting plan, which re
sulted in the majority Republican Party capturing a larger share of
the seats. A test that treats these two similarly effective power plays
in such different ways does not have the reliability appellants ascribe
to it. Pp. 10–14.
(c) Appellants’ political gerrymandering theory that mid-decade re
districting for exclusively partisan purposes violates the one-person,
one-vote requirement is rejected. Although conceding that States op
erate under the legal fiction that their plans are constitutionally ap
portioned throughout a decade, see, e.g., Georgia v. Ashcroft, 539
U. S. 461, 488, n. 2, appellants contend that this fiction should not
provide a safe harbor for a legislature that enacts a voluntary, mid-
decade plan overriding a legal court-drawn plan. This argument mir
rors appellants’ attack on mid-decennial redistricting solely moti
vated by partisan considerations and is unsatisfactory for the same
reasons. Their further contention that the legislature intentionally
sought to manipulate population variances when it enacted Plan
1374C is unconvincing because there is no District Court finding to
that effect, and they present no specific evidence to support this seri
ous allegation of bad faith. Because they have not demonstrated that
the legislature’s decision to enact Plan 1374C constitutes a violation
of the equal-population requirement, their subsidiary reliance on
Larios v. Cox, 300 F. Supp. 2d 1320, summarily aff’d, 542 U. S. 947, is
unavailing. Pp. 14–16.
JUSTICE KENNEDY, joined by THE CHIEF JUSTICE and JUSTICE ALITO,
concluded in Part IV that the Dallas area redistricting does not vio
late §2 of the Voting Rights Act. Appellants allege that the Dallas
changes dilute African-American voting strength because an African-
American minority effectively controlled District 24 under Plan
1151C. However, before Plan 1374C, District 24 had elected an An
glo Democrat to Congress in every election since 1978. Since then,
moreover, the incumbent has had no opposition in any of his primary
elections, and African-Americans have consistently voted for him.
African-Americans were the second-largest racial group in the dis
trict after Anglos, but had only 25.7% of the citizen voting age popu
lation. Even assuming that the first Gingles prong can accommodate
appellants’ assertion that a §2 claim may be stated for a racial group
that makes up less than 50% of the population, see, e.g., De Grandy,
supra, at 1009, they must show they constitute “a sufficiently large
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minority to elect their candidate of choice with the assistance of
cross-over votes,” Voinovich v. Quilter, 507 U. S. 146, 158. The District
Court committed no clear error in rejecting questionable evidence
that African-Americans have the ability to elect their candidate of
choice in favor of other evidence that an African-American candidate
of choice would not prevail. See Anderson v. Bessemer City, 470 U. S.
564, 574. That African-Americans had influence in the district does
not suffice to state a §2 claim. If it did, it would unnecessarily infuse
race into virtually every redistricting, raising serious constitutional
questions. See Georgia v. Ashcroft, 539 U. S. 461, 491. Id., at 480, 482,
distinguished. Appellants do not raise a district-specific political ger
rymandering claim against District 24. Pp. 37–41.
THE CHIEF JUSTICE, joined by JUSTICE ALITO, agreed that appellants
have not provided a reliable standard for identifying unconstitutional
political gerrymanders, but noted that the question whether any such
standard exists—i.e., whether a challenge to such a gerrymander
presents a justiciable case or controversy—has not been argued in
these cases. THE CHIEF JUSTICE and JUSTICE ALITO therefore take no
position on that question, which has divided the Court, see Vieth v.
Jubelirer, 541 U. S. 267, and join the plurality’s Part II disposition
without specifying whether appellants have failed to state a claim on
which relief can be granted or failed to present a justiciable contro
versy. Pp. 1–2.
JUSTICE SCALIA, joined by JUSTICE THOMAS, concluded that appel
lants’ claims of unconstitutional political gerrymandering do not pre
sent a justiciable case or controversy, see Vieth v. Jubelirer, 541 U. S.
267, 271–306 (plurality opinion), and that their vote-dilution claims
premised on §2 of the Voting Rights Act of 1965 lack merit for the
reasons set forth in JUSTICE THOMAS’s opinion concurring in the
judgment in Holder v. Hall, 512 U. S. 874, 891–946. Reviewing ap
pellants’ race-based equal protection claims, JUSTICE SCALIA, joined
by THE CHIEF JUSTICE, JUSTICE THOMAS, and JUSTICE ALITO, concluded
that the District Court did not commit clear error in rejecting appel
lant GI Forum’s assertion that the removal of Latino residents from
District 23 constituted intentional vote dilution. JUSTICE SCALIA,
joined by THE CHIEF JUSTICE, JUSTICE THOMAS, and JUSTICE ALITO,
subjected the intentional creation of District 25 as a majority-
minority district to strict scrutiny and held that standard satisfied
because appellants conceded that the creation of this district was
reasonably necessary to comply with §5 of the Voting Rights Act of
1965, which is a compelling state interest, and did not argue that
Texas did more than that provision required it to do. Pp. 2–11.

KENNEDY, J., announced the judgment of the Court and delivered the
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opinion of the Court with respect to Parts II–A and III, in which STE
VENS, SOUTER, GINSBURG, AND BREYER, JJ., joined, an opinion with re
spect to Parts I and IV, in which ROBERTS, C. J., and ALITO, J., joined,
an opinion with respect to Parts II–B and II–C, and an opinion with
respect to Part II–D, in which SOUTER and GINSBURG, JJ., joined. STE
VENS, J., filed an opinion concurring in part and dissenting in part, in
which BREYER, J., joined as to Parts I and II. SOUTER, J., filed an opin
ion concurring in part and dissenting in part, in which GINSBURG, J.,
joined. BREYER, J., filed an opinion concurring in part and dissenting in
part. ROBERTS, C. J., filed an opinion concurring in part, concurring in
the judgment in part, and dissenting in part, in which ALITO, J., joined.
SCALIA, J., filed an opinion concurring in the judgment in part and dis
senting in part, in which THOMAS, J., joined, and in which ROBERTS,
C. J., and ALITO, J., joined as to Part III.
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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
_________________

Nos. 05–204, 05–254, 05–276 and 05–439
_________________

LEAGUE OF UNITED LATIN AMERICAN CITIZENS,
ET AL., APPELLANTS
05–204 v.
RICK PERRY, GOVERNOR OF TEXAS, ET AL.

TRAVIS COUNTY, TEXAS, ET AL., APPELLANTS
05–254 v.
RICK PERRY, GOVERNOR OF TEXAS, ET AL.

EDDIE JACKSON, ET AL., APPELLANTS
05–276 v.
RICK PERRY, GOVERNOR OF TEXAS, ET AL.

GI FORUM OF TEXAS, ET AL., APPELLANTS
05–439 v.
RICK PERRY, GOVERNOR OF TEXAS, ET AL.
ON APPEALS FROM THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF TEXAS
[June 28, 2006]

JUSTICE KENNEDY announced the judgment of the Court
and delivered the opinion of the Court with respect to
Parts II–A and III, an opinion with respect to Parts I and
IV, in which THE CHIEF JUSTICE and JUSTICE ALITO join,
an opinion with respect to Parts II–B and II–C, and an
opinion with respect to Part II–D, in which JUSTICE
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Opinion of KENNEDY, J.

SOUTER and JUSTICE GINSBURG join.
These four consolidated cases are appeals from a judg
ment entered by the United States District Court for the
Eastern District of Texas. Convened as a three-judge
court under 28 U. S. C. §2284, the court heard appellants’
constitutional and statutory challenges to a 2003 enactment
of the Texas State Legislature that drew new district lines
for the 32 seats Texas holds in the United States House of
Representatives. (Though appellants do not join each other
as to all claims, for the sake of convenience we refer to
appellants collectively.) In 2004 the court entered judg
ment for appellees and issued detailed findings of fact and
conclusions of law. Session v. Perry, 298 F. Supp. 2d 451
(per curiam). This Court vacated that decision and re
manded for consideration in light of Vieth v. Jubelirer, 541
U. S. 267 (2004). 543 U. S. 941 (2004). The District Court
reexamined appellants’ political gerrymandering claims
and, in a second careful opinion, again held for the defen
dants. Henderson v. Perry, 399 F. Supp. 2d 756 (2005).
These appeals followed, and we noted probable jurisdiction.
546 U. S. ___ (2005).
Appellants contend the new plan is an unconstitutional
partisan gerrymander and that the redistricting statewide
violates §2 of the Voting Rights Act of 1965, 79 Stat. 437,
as amended, 42 U. S. C. §1973. Appellants also contend
that the use of race and politics in drawing lines of specific
districts violates the First Amendment and the Equal
Protection Clause of the Fourteenth Amendment. The
three-judge panel, consisting of Circuit Judge
Higginbotham and District Judges Ward and Rosenthal,
brought considerable experience and expertise to the
instant case, based on their knowledge of the State’s peo
ple, history, and geography. Judges Higginbotham and
Ward, moreover, had served on the three-judge court that
drew the plan the Texas Legislature replaced in 2003, so
they were intimately familiar with the history and intrica
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Opinion of KENNEDY, J.

cies of the cases.
We affirm the District Court’s dispositions on the state
wide political gerrymandering claims and the Voting
Rights Act claim against District 24. We reverse and
remand on the Voting Rights Act claim with respect to
District 23. Because we do not reach appellants’ race-
based equal protection claim or the political gerrymander
ing claim as to District 23, we vacate the judgment of the
District Court on these claims.
I
To set out a proper framework for the case, we first
recount the history of the litigation and recent districting
in Texas. An appropriate starting point is not the reap
portionment in 2000 but the one from the census in 1990.
The 1990 census resulted in a 30-seat congressional
delegation for Texas, an increase of 3 seats over the 27
representatives allotted to the State in the decade before.
See Bush v. Vera, 517 U. S. 952, 956–957 (1996). In 1991
the Texas Legislature drew new district lines. At the
time, the Democratic Party controlled both houses in the
state legislature, the governorship, and 19 of the State’s
27 seats in Congress. Yet change appeared to be on the
horizon. In the previous 30 years the Democratic Party’s
post-Reconstruction dominance over the Republican Party
had eroded, and by 1990 the Republicans received 47% of
the statewide vote, while the Democrats received 51%.
Henderson, supra, at 763; Brief for Appellee Perry et al.
in No. 05–204, etc., p. 2 (hereinafter Brief for State
Appellees).
Faced with a Republican opposition that could be mov
ing toward majority status, the state legislature drew a
congressional redistricting plan designed to favor Democ
ratic candidates. Using then-emerging computer technol
ogy to draw district lines with artful precision, the legisla
ture enacted a plan later described as the “shrewdest
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Opinion of KENNEDY, J.

gerrymander of the 1990s.” M. Barone, R. Cohen, & C.
Cook, Almanac of American Politics 2002, p. 1448 (2001).
See Henderson, supra, at 767, and n. 47. Although the
1991 plan was enacted by the state legislature, Democ
ratic Congressman Martin Frost was acknowledged as its
architect. Session, supra, at 482. The 1991 plan “carefully
constructs democratic districts ‘with incredibly convoluted
lines’ and packs ‘heavily Republican’ suburban areas into
just a few districts.” Henderson, supra, at 767, n. 47 (quot
ing M. Barone & R. Cohen, Almanac of American Politics
2004, p. 1510 (2003) (hereinafter 2004 Almanac)).
Voters who considered this unfair and unlawful treat
ment sought to invalidate the 1991 plan as an unconstitu
tional partisan gerrymander, but to no avail. See Terrazas
v. Slagle, 789 F. Supp. 828, 833 (WD Tex. 1992); Terrazas
v. Slagle, 821 F. Supp. 1162, 1175 (WD Tex. 1993). The
1991 plan realized the hopes of Democrats and the fears of
Republicans with respect to the composition of the Texas
congressional delegation. The 1990’s were years of con
tinued growth for the Texas Republican Party, and by the
end of the decade it was sweeping elections for statewide
office. Nevertheless, despite carrying 59% of the vote in
statewide elections in 2000, the Republicans only won 13
congressional seats to the Democrats’ 17. Henderson,
supra, at 763.
These events likely were not forgotten by either party
when it came time to draw congressional districts in con
formance with the 2000 census and to incorporate two
additional seats for the Texas delegation. The Republican
Party controlled the governorship and the State Senate; it
did not yet control the State House of Representatives,
however. As so constituted, the legislature was unable to
pass a redistricting scheme, resulting in litigation and the
necessity of a court-ordered plan to comply with the Con
stitution’s one-person, one-vote requirement. See Bal
deras v. Texas, Civ. Action No. 6:01CV158 (ED Tex., Nov.
 Cite as: 548 U. S. ____ (2006) 5

Opinion of KENNEDY, J.

14, 2001) (per curiam), summarily aff’d, 536 U. S. 919
(2002), App. E to Juris. Statement in No. 05–276, p. 202a.
The congressional districting map resulting from the
Balderas litigation is known as Plan 1151C.
As we have said, two members of the three-judge court
that drew Plan 1151C later served on the three-judge
court that issued the judgment now under review. Thus
we have the benefit of their candid comments concerning
the redistricting approach taken in the Balderas litigation.
Conscious that the primary responsibility for drawing
congressional districts is given to political branches of
government, and hesitant to “und[o] the work of one politi
cal party for the benefit of another,” the three-judge Bal
deras court sought to apply “only ‘neutral’ redistricting
standards” when drawing Plan 1151C. Henderson, 399
F. Supp. 2d, at 768. Once the District Court applied these
principles—such as placing the two new seats in high-
growth areas, following county and voting precinct lines,
and avoiding the pairing of incumbents—“the drawing
ceased, leaving the map free of further change except to
conform it to one-person, one-vote.” Ibid. Under Plan
1151C, the 2002 congressional elections resulted in a 17
to-15 Democratic majority in the Texas delegation, com
pared to a 59% to 40% Republican majority in votes for
statewide office in 2000. Id., at 763–764. Reflecting on
the Balderas Plan, the District Court in Henderson was
candid to acknowledge “[t]he practical effect of this effort
was to leave the 1991 Democratic Party gerrymander
largely in place as a ‘legal’ plan.” Id., at 768.
The continuing influence of a court-drawn map that
“perpetuated much of [the 1991] gerrymander,” ibid., was
not lost on Texas Republicans when, in 2003, they gained
control of the State House of Representatives and, thus,
both houses of the legislature. The Republicans in the
legislature “set out to increase their representation in the
congressional delegation.” Session, 298 F. Supp. 2d, at
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471. See also id., at 470 (“There is little question but that
the single-minded purpose of the Texas Legislature in
enacting [a new plan] was to gain partisan advantage”).
After a protracted partisan struggle, during which Democ
ratic legislators left the State for a time to frustrate quo
rum requirements, the legislature enacted a new congres
sional districting map in October 2003. It is called Plan
1374C. The 2004 congressional elections did not disap
point the plan’s drafters. Republicans won 21 seats to the
Democrats’ 11, while also obtaining 58% of the vote in
statewide races against the Democrats’ 41%. Henderson,
supra, at 764.
Soon after Texas enacted Plan 1374C, appellants chal
lenged it in court, alleging a host of constitutional and
statutory violations. Initially, the District Court entered
judgment against appellants on all their claims. See
Session, 298 F. Supp. 2d, at 457; id., at 515 (Ward, J.,
concurring in part and dissenting in part). Appellants
sought relief here and, after their jurisdictional state
ments were filed, this Court issued Vieth v. Jubelirer. Our
order vacating the District Court judgment and remand
ing for consideration in light of Vieth was issued just
weeks before the 2004 elections. See 543 U. S. 941 (Oct.
18, 2004). On remand, the District Court, believing the
scope of its mandate was limited to questions of political
gerrymandering, again rejected appellants’ claims. Hen
derson, 399 F. Supp. 2d, at 777–778. Judge Ward would
have granted relief under the theory—presented to the
court for the first time on remand—that mid-decennial
redistricting violates the one-person, one-vote require
ment, but he concluded such an argument was not within
the scope of the remand mandate. Id., at 779, 784–785
(specially concurring).
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Opinion of the Court

II

A

Based on two similar theories that address the mid-
decade character of the 2003 redistricting, appellants now
argue that Plan 1374C should be invalidated as an uncon
stitutional partisan gerrymander. In Davis v. Bandemer,
478 U. S. 109 (1986), the Court held that an equal protection
challenge to a political gerrymander presents a justiciable
case or controversy, id., at 118–127, but there was dis
agreement over what substantive standard to apply. Com
pare id., at 127–137 (plurality opinion) with id., at 161–162
(Powell, J., concurring in part and dissenting in part). That
disagreement persists. A plurality of the Court in Vieth v.
Jubelirer would have held such challenges to be nonjusticia
ble political questions, but a majority declined to do so. See
541 U. S., at 306 (KENNEDY, J., concurring in judgment); id.,
at 317 (STEVENS, J., dissenting); id., at 343 (SOUTER, J.,
dissenting); id., at 355 (BREYER, J., dissenting). We do not
revisit the justiciability holding but do proceed to examine
whether appellants’ claims offer the Court a manageable,
reliable measure of fairness for determining whether a
partisan gerrymander violates the Constitution.
B
Before addressing appellants’ arguments on mid-decade
redistricting, it is appropriate to note some basic princi
ples on the roles the States, Congress, and the courts play
in determining how congressional districts are to be
drawn. Article I of the Constitution provides:
“Section 2. The House of Representatives shall be
composed of Members chosen every second Year by
the People of the several States . . . .
. . . . .
“Section 4. The Times, Places and Manner of hold
ing Elections for . . . Representatives, shall be pre
scribed in each State by the Legislature thereof; but
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the Congress may at any time by Law make or alter
such Regulations . . . .”
This text, we have explained, “leaves with the States
primary responsibility for apportionment of their federal
congressional . . . districts.” Growe v. Emison, 507 U. S. 25,
34 (1993); see also Chapman v. Meier, 420 U. S. 1, 27 (1975)
(“[R]eapportionment is primarily the duty and responsibility
of the State through its legislature or other body”); Smiley v.
Holm, 285 U. S. 355, 366–367 (1932) (reapportionment
implicated State’s powers under Art. I, §4). Congress, as
the text of the Constitution also provides, may set further
requirements, and with respect to districting it has gener
ally required single-member districts. See U. S. Const.,
Art. I, §4; 81 Stat. 581, 2 U. S. C. §2c; Branch v. Smith, 538
U. S. 254, 266–267 (2003). But see id., at 275 (plurality
opinion) (multimember districts permitted by 55 Stat. 762, 2
U. S. C. §2a(c) in limited circumstances). With respect to a
mid-decade redistricting to change districts drawn earlier
in conformance with a decennial census, the Constitution
and Congress state no explicit prohibition.
Although the legislative branch plays the primary role
in congressional redistricting, our precedents recognize an
important role for the courts when a districting plan vio
lates the Constitution. See, e.g., Wesberry v. Sanders, 376
U. S. 1 (1964). This litigation is an example, as we have
discussed. When Texas did not enact a plan to comply with
the one-person, one-vote requirement under the 2000 cen
sus, the District Court found it necessary to draw a redis
tricting map on its own. That the federal courts sometimes
are required to order legislative redistricting, however, does
not shift the primary locus of responsibility.
“Legislative bodies should not leave their reappor
tionment tasks to the federal courts; but when those
with legislative responsibilities do not respond, or the
imminence of a state election makes it impractical for
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Opinion of KENNEDY, J.

them to do so, it becomes the ‘unwelcome obligation’ of
the federal court to devise and impose a reapportion
ment plan pending later legislative action.” Wise v.
Lipscomb, 437 U. S. 535, 540 (1978) (principal opinion)
(quoting Connor v. Finch, 431 U. S. 407, 415 (1977)).
Quite apart from the risk of acting without a legislature’s
expertise, and quite apart from the difficulties a court
faces in drawing a map that is fair and rational, see id., at
414–415, the obligation placed upon the Federal Judiciary
is unwelcome because drawing lines for congressional
districts is one of the most significant acts a State can
perform to ensure citizen participation in republican self-
governance. That Congress is the federal body explicitly
given constitutional power over elections is also a notewor
thy statement of preference for the democratic process. As
the Constitution vests redistricting responsibilities fore
most in the legislatures of the States and in Congress, a
lawful, legislatively enacted plan should be preferable to
one drawn by the courts.
It should follow, too, that if a legislature acts to replace
a court-drawn plan with one of its own design, no pre
sumption of impropriety should attach to the legislative
decision to act. As the District Court noted here, Session,
298 F. Supp. 2d, at 460–461, our decisions have assumed
that state legislatures are free to replace court-mandated
remedial plans by enacting redistricting plans of their
own. See, e.g., Upham v. Seamon, 456 U. S. 37, 44 (1982)
(per curiam); Wise, supra, at 540 (principal opinion) (quot
ing Connor, supra, at 415); Burns v. Richardson, 384 U. S.
73, 85 (1966); Reynolds v. Sims, 377 U. S. 533, 587 (1964).
Underlying this principle is the assumption that to prefer
a court-drawn plan to a legislature’s replacement would be
contrary to the ordinary and proper operation of the politi
cal process. Judicial respect for legislative plans, however,
cannot justify legislative reliance on improper criteria for
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districting determinations. With these considerations in
mind, we next turn to consider appellants’ challenges to
the new redistricting plan.
C
Appellants claim that Plan 1374C, enacted by the Texas
Legislature in 2003, is an unconstitutional political ger
rymander. A decision, they claim, to effect mid-decennial
redistricting, when solely motivated by partisan objec
tives, violates equal protection and the First Amendment
because it serves no legitimate public purpose and bur
dens one group because of its political opinions and affilia
tion. The mid-decennial nature of the redistricting, appel
lants say, reveals the legislature’s sole motivation. Unlike
Vieth, where the legislature acted in the context of a re
quired decennial redistricting, the Texas Legislature
voluntarily replaced a plan that itself was designed to
comply with new census data. Because Texas had “no
constitutional obligation to act at all” in 2003, Brief for
Appellant Jackson et al. in No. 05–276, p. 26, it is hardly
surprising, according to appellants, that the District Court
found “[t]here is little question but that the single-minded
purpose of the Texas Legislature in enacting Plan 1374C
was to gain partisan advantage” for the Republican major
ity over the Democratic minority, Session, supra, at 470.
A rule, or perhaps a presumption, of invalidity when a
mid-decade redistricting plan is adopted solely for parti
san motivations is a salutary one, in appellants’ view, for
then courts need not inquire about, nor parties prove, the
discriminatory effects of partisan gerrymandering—a
matter that has proved elusive since Bandemer. See
Vieth, 541 U. S., at 281 (plurality opinion); Bandemer, 478
U. S., at 127. Adding to the test’s simplicity is that it does
not quibble with the drawing of individual district lines
but challenges the decision to redistrict at all.
For a number of reasons, appellants’ case for adopting
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their test is not convincing. To begin with, the state ap
pellees dispute the assertion that partisan gain was the
“sole” motivation for the decision to replace Plan 1151C.
There is some merit to that criticism, for the pejorative
label overlooks indications that partisan motives did not
dictate the plan in its entirety. The legislature does seem
to have decided to redistrict with the sole purpose of
achieving a Republican congressional majority, but parti
san aims did not guide every line it drew. As the District
Court found, the contours of some contested district lines
were drawn based on more mundane and local interests.
Session, supra, at 472–473. The state appellees also con
tend, and appellants do not contest, that a number of line-
drawing requests by Democratic state legislators were
honored. Brief for State Appellees 34.
Evaluating the legality of acts arising out of mixed
motives can be complex, and affixing a single label to
those acts can be hazardous, even when the actor is an
individual performing a discrete act. See, e.g., Hartman v.
Moore, 547 U. S. ___, ___ (2006) (slip op., at 9–10). When
the actor is a legislature and the act is a composite of
manifold choices, the task can be even more daunting.
Appellants’ attempt to separate the legislature’s sole
motive for discarding Plan 1151C from the complex of
choices it made while drawing the lines of Plan 1374C
seeks to avoid that difficulty. We are skeptical, however,
of a claim that seeks to invalidate a statute based on a
legislature’s unlawful motive but does so without refer
ence to the content of the legislation enacted.
Even setting this skepticism aside, a successful claim
attempting to identify unconstitutional acts of partisan
gerrymandering must do what appellants’ sole-motivation
theory explicitly disavows: show a burden, as measured by
a reliable standard, on the complainants’ representational
rights. For this reason, a majority of the Court rejected a
test proposed in Vieth that is markedly similar to the one
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appellants present today. Compare 541 U. S., at 336
(STEVENS, J., dissenting) (“Just as race can be a factor in,
but cannot dictate the outcome of, the districting process,
so too can partisanship be a permissible consideration in
drawing district lines, so long as it does not predominate”),
and id., at 338 (“[A]n acceptable rational basis can be
neither purely personal nor purely partisan”), with id., at
292–295 (plurality opinion), and id., at 307–308
(KENNEDY, J., concurring in judgment).
The sole-intent standard offered here is no more compel
ling when it is linked to the circumstance that Plan 1374C
is mid-decennial legislation. The text and structure of the
Constitution and our case law indicate there is nothing
inherently suspect about a legislature’s decision to replace
mid-decade a court-ordered plan with one of its own. And
even if there were, the fact of mid-decade redistricting
alone is no sure indication of unlawful political gerryman
ders. Under appellants’ theory, a highly effective partisan
gerrymander that coincided with decennial redistricting
would receive less scrutiny than a bumbling, yet solely
partisan, mid-decade redistricting. More concretely, the
test would leave untouched the 1991 Texas redistricting,
which entrenched a party on the verge of minority status,
while striking down the 2003 redistricting plan, which
resulted in the majority Republican Party capturing a
larger share of the seats. A test that treats these two
similarly effective power plays in such different ways does
not have the reliability appellants ascribe to it.
Furthermore, compared to the map challenged in Vieth,
which led to a Republican majority in the congressional
delegation despite a Democratic majority in the statewide
vote, Plan 1374C can be seen as making the party balance
more congruent to statewide party power. To be sure,
there is no constitutional requirement of proportional
representation, and equating a party’s statewide share of
the vote with its portion of the congressional delegation is
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Opinion of KENNEDY, J.

a rough measure at best. Nevertheless, a congressional
plan that more closely reflects the distribution of state
party power seems a less likely vehicle for partisan dis
crimination than one that entrenches an electoral minor
ity. See Gaffney v. Cummings, 412 U. S. 735, 754 (1973).
By this measure, Plan 1374C can be seen as fairer than
the plan that survived in Vieth and the two previous Texas
plans—all three of which would pass the modified sole-
intent test that Plan 1374C would fail.
A brief for one of the amici proposes a symmetry stan
dard that would measure partisan bias by “compar[ing]
how both parties would fare hypothetically if they each (in
turn) had received a given percentage of the vote.” Brief
for Gary King et al. 5. Under that standard the measure
of a map’s bias is the extent to which a majority party
would fare better than the minority party should their
respective shares of the vote reverse. In our view amici’s
proposed standard does not compensate for appellants’
failure to provide a reliable measure of fairness. The
existence or degree of asymmetry may in large part de
pend on conjecture about where possible vote-switchers
will reside. Even assuming a court could choose reliably
among different models of shifting voter preferences, we
are wary of adopting a constitutional standard that invali
dates a map based on unfair results that would occur in a
hypothetical state of affairs. Presumably such a challenge
could be litigated if and when the feared inequity arose.
Cf. Abbott Laboratories v. Gardner, 387 U. S. 136, 148
(1967). More fundamentally, the counterfactual plaintiff
would face the same problem as the present, actual appel
lants: providing a standard for deciding how much partisan
dominance is too much. Without altogether discounting its
utility in redistricting planning and litigation, we conclude
asymmetry alone is not a reliable measure of unconstitu
tional partisanship.
In the absence of any other workable test for judging
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partisan gerrymanders, one effect of appellants’ focus on
mid-decade redistricting could be to encourage partisan
excess at the outset of the decade, when a legislature
redistricts pursuant to its decennial constitutional duty
and is then immune from the charge of sole-motivation. If
mid-decade redistricting were barred or at least subject to
close judicial oversight, opposition legislators would also
have every incentive to prevent passage of a legislative
plan and try their luck with a court that might give them
a better deal than negotiation with their political rivals.
See Henderson, 399 F. Supp. 2d, at 776–777.
D
Appellants’ second political gerrymandering theory is
that mid-decade redistricting for exclusively partisan
purposes violates the one-person, one-vote requirement.
They observe that population variances in legislative
districts are tolerated only if they “are unavoidable despite
a good-faith effort to achieve absolute equality, or for
which justification is shown.” Karcher v. Daggett, 462
U. S. 725, 730 (1983) (quoting Kirkpatrick v. Preisler, 394
U. S. 526, 531 (1969); internal quotation marks omitted).
Working from this unchallenged premise, appellants
contend that, because the population of Texas has shifted
since the 2000 census, the 2003 redistricting, which relied
on that census, created unlawful interdistrict population
variances.
To distinguish the variances in Plan 1374C from those
of ordinary, 3-year-old districting plans or belatedly drawn
court-ordered plans, appellants again rely on the volun
tary, mid-decade nature of the redistricting and its parti
san motivation. Appellants do not contend that a decen
nial redistricting plan would violate equal representation
three or five years into the decade if the State’s population
had shifted substantially. As they must, they concede that
States operate under the legal fiction that their plans are
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Opinion of KENNEDY, J.

constitutionally apportioned throughout the decade, a
presumption that is necessary to avoid constant redistrict
ing, with accompanying costs and instability. See Georgia
v. Ashcroft, 539 U. S. 461, 488, n. 2 (2003); Reynolds, 377
U. S., at 583. Appellants agree that a plan implemented
by a court in 2001 using 2000 population data also enjoys
the benefit of the so-called legal fiction, presumably be
cause belated court-drawn plans promote other important
interests, such as ensuring a plan complies with the Con
stitution and voting rights legislation.
In appellants’ view, however, this fiction should not
provide a safe harbor for a legislature that enacts a volun
tary, mid-decade plan overriding a legal court-drawn plan,
thus “ ‘unnecessarily’ ” creating population variance “when
there was no legal compulsion” to do so. Brief for Appel
lant Travis County et al. in No. 05–254, p. 18. This is
particularly so, appellants say, when a legislature acts
because of an exclusively partisan motivation. Under
appellants’ theory this improper motive at the outset
seems enough to condemn the map for violating the equal-
population principle. For this reason, appellants believe
that the State cannot justify under Karcher v. Daggett the
population variances in Plan 1374C because they are the
product of partisan bias and the desire to eliminate all
competitive districts.
As the District Court noted, this is a test that turns not
on whether a redistricting furthers equal-population
principles but rather on the justification for redrawing a
plan in the first place. Henderson, supra, at 776. In that
respect appellants’ approach merely restates the question
whether it was permissible for the Texas Legislature to
redraw the districting map. Appellants’ answer, which
mirrors their attack on mid-decennial redistricting solely
motivated by partisan considerations, is unsatisfactory for
reasons we have already discussed.
Appellants also contend that the legislature intention
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ally sought to manipulate population variances when it
enacted Plan 1374C. There is, however, no District Court
finding to that effect, and appellants present no specific
evidence to support this serious allegation of bad faith.
Because appellants have not demonstrated that the legis
lature’s decision to enact Plan 1374C constitutes a viola
tion of the equal-population requirement, we find unavail
ing their subsidiary reliance on Larios v. Cox, 300 F. Supp.
2d 1320 (ND Ga. 2004) (per curiam), summarily aff’d, 542
U. S. 947 (2004). In Larios, the District Court reviewed
the Georgia Legislature’s decennial redistricting of its
State Senate and House of Representatives districts and
found deviations from the equal-population requirement.
The District Court then held the objectives of the drafters,
which included partisan interests along with regionalist
bias and inconsistent incumbent protection, did not justify
those deviations. 300 F. Supp. 2d, at 1351–1352. The
Larios holding and its examination of the legislature’s
motivations were relevant only in response to an equal-
population violation, something appellants have not estab
lished here. Even in addressing political motivation as a
justification for an equal-population violation, moreover,
Larios does not give clear guidance. The panel explained
it “need not resolve the issue of whether or when partisan
advantage alone may justify deviations in population”
because the plans were “plainly unlawful” and any parti
san motivations were “bound up inextricably” with other
clearly rejected objectives. Id., at 1352.
In sum, we disagree with appellants’ view that a legisla
ture’s decision to override a valid, court-drawn plan mid-
decade is sufficiently suspect to give shape to a reliable
standard for identifying unconstitutional political gerry
manders. We conclude that appellants have established
no legally impermissible use of political classifications.
For this reason, they state no claim on which relief may be
granted for their statewide challenge.
 Cite as: 548 U. S. ____ (2006)
17

Opinion of the Court

III

Plan 1374C made changes to district lines in south and
west Texas that appellants challenge as violations of §2 of
the Voting Rights Act and the Equal Protection Clause of
the Fourteenth Amendment. The most significant
changes occurred to District 23, which—both before and
after the redistricting—covers a large land area in west
Texas, and to District 25, which earlier included Houston
but now includes a different area, a north-south strip from
Austin to the Rio Grande Valley.
After the 2002 election, it became apparent that District
23 as then drawn had an increasingly powerful Latino
population that threatened to oust the incumbent Republi
can, Henry Bonilla. Before the 2003 redistricting, the
Latino share of the citizen voting-age population was
57.5%, and Bonilla’s support among Latinos had dropped
with each successive election since 1996. Session, 298
F. Supp. 2d, at 488–489. In 2002, Bonilla captured only
8% of the Latino vote, ibid., and 51.5% of the overall vote.
Faced with this loss of voter support, the legislature acted
to protect Bonilla’s incumbency by changing the lines—
and hence the population mix—of the district. To begin
with, the new plan divided Webb County and the city of
Laredo, on the Mexican border, that formed the county’s
population base. Webb County, which is 94% Latino, had
previously rested entirely within District 23; under the
new plan, nearly 100,000 people were shifted into
neighboring District 28. Id., at 489. The rest of the
county, approximately 93,000 people, remained in District
23. To replace the numbers District 23 lost, the State
added voters in counties comprising a largely Anglo, Re
publican area in central Texas. Id., at 488. In the newly
drawn district, the Latino share of the citizen voting-age
population dropped to 46%, though the Latino share of the
total voting-age population remained just over 50%. Id.,
at 489.
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These changes required adjustments elsewhere, of
course, so the State inserted a third district between the
two districts to the east of District 23, and extended all
three of them farther north. New District 25 is a long,
narrow strip that winds its way from McAllen and the
Mexican border towns in the south to Austin, in the center
of the State and 300 miles away. Id., at 502. In between
it includes seven full counties, but 77% of its population
resides in split counties at the northern and southern
ends. Of this 77%, roughly half reside in Hidalgo County,
which includes McAllen, and half are in Travis County,
which includes parts of Austin. Ibid. The Latinos in
District 25, comprising 55% of the district’s citizen voting-
age population, are also mostly divided between the two
distant areas, north and south. Id., at 499. The Latino
communities at the opposite ends of District 25 have
divergent “needs and interests,” id., at 502, owing to “dif
ferences in socio-economic status, education, employment,
health, and other characteristics,” id., at 512.
The District Court summed up the purposes underlying
the redistricting in south and west Texas: “The change to
Congressional District 23 served the dual goal of increas
ing Republican seats in general and protecting Bonilla’s
incumbency in particular, with the additional political
nuance that Bonilla would be reelected in a district that
had a majority of Latino voting age population—although
clearly not a majority of citizen voting age population and
certainly not an effective voting majority.” Id., at 497.
The goal in creating District 25 was just as clear: “[t]o
avoid retrogression under §5” of the Voting Rights Act
given the reduced Latino voting strength in District 23.
Id., at 489.
A
The question we address is whether Plan 1374C violates
§2 of the Voting Rights Act. A State violates §2
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Opinion of the Court

“if, based on the totality of circumstances, it is shown
that the political processes leading to nomination or
election in the State or political subdivision are not
equally open to participation by members of [a racial
group] in that its members have less opportunity than
other members of the electorate to participate in the
political process and to elect representatives of their
choice.” 42 U. S. C. §1973(b).
The Court has identified three threshold conditions for
establishing a §2 violation: (1) the racial group is “ ‘ “suffi
ciently large and geographically compact to constitute a
majority in a single-member district” ’ ”; (2) the racial
group is “ ‘ “politically cohesive” ’ ”; and (3) the majority
“ ‘ “vot[es] sufficiently as a bloc to enable it . . . usually to
defeat the minority’s preferred candidate.” ’ ” Johnson v.
De Grandy, 512 U. S. 997, 1006–1007 (1994) (quoting
Growe, 507 U. S., at 40 (in turn quoting Thornburg v.
Gingles, 478 U. S. 30, 50–51 (1986))). These are the so-
called Gingles requirements.
If all three Gingles requirements are established, the
statutory text directs us to consider the “totality of cir
cumstances” to determine whether members of a racial
group have less opportunity than do other members of the
electorate. De Grandy, supra, at 1011–1012; see also
Abrams v. Johnson, 521 U. S. 74, 91 (1997). The general
terms of the statutory standard “totality of circumstances”
require judicial interpretation. For this purpose, the
Court has referred to the Senate Report on the 1982
amendments to the Voting Rights Act, which identifies
factors typically relevant to a §2 claim, including:
“the history of voting-related discrimination in the
State or political subdivision; the extent to which vot
ing in the elections of the State or political subdivision
is racially polarized; the extent to which the State or
political subdivision has used voting practices or pro
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cedures that tend to enhance the opportunity for dis
crimination against the minority group . . . ; the ex
tent to which minority group members bear the effects
of past discrimination in areas such as education, em
ployment, and health, which hinder their ability to
participate effectively in the political process; the use
of overt or subtle racial appeals in political cam
paigns; and the extent to which members of the mi
nority group have been elected to public office in the
jurisdiction. The Report notes also that evidence
demonstrating that elected officials are unresponsive
to the particularized needs of the members of the mi
nority group and that the policy underlying the
State’s or the political subdivision’s use of the con
tested practice or structure is tenuous may have pro
bative value.” Gingles, supra, at 44–45 (citing S. Rep.
No. 97–417 (1982) (hereinafter Senate Report); pin
point citations omitted).
Another relevant consideration is whether the number
of districts in which the minority group forms an effective
majority is roughly proportional to its share of the popula
tion in the relevant area. De Grandy, supra, at 1000.
The District Court’s determination whether the §2
requirements are satisfied must be upheld unless clearly
erroneous. See Gingles, supra, at 78–79. Where “the
ultimate finding of dilution” is based on “a misreading of
the governing law,” however, there is reversible error. De
Grandy, supra, at 1022.
B
Appellants argue that the changes to District 23 diluted
the voting rights of Latinos who remain in the district.
Specifically, the redrawing of lines in District 23 caused
the Latino share of the citizen voting-age population to
drop from 57.5% to 46%. The District Court recognized
that “Latino voting strength in Congressional District 23
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Opinion of the Court

is, unquestionably, weakened under Plan 1374C.” Ses
sion, 298 F. Supp. 2d, at 497. The question is whether this
weakening amounts to vote dilution.
To begin the Gingles analysis, it is evident that the
second and third Gingles preconditions—cohesion among
the minority group and bloc voting among the majority
population—are present in District 23. The District Court
found “racially polarized voting” in south and west Texas,
and indeed “throughout the State.” Session, supra, at
492–493. The polarization in District 23 was especially
severe: 92% of Latinos voted against Bonilla in 2002, while
88% of non-Latinos voted for him. App. 134, Table 20
(expert Report of Allan J. Lichtman on Voting-Rights
Issues in Texas Congressional Redistricting (Nov. 14,
2002) (hereinafter Lichtman Report)). Furthermore, the
projected results in new District 23 show that the Anglo
citizen voting-age majority will often, if not always, pre
vent Latinos from electing the candidate of their choice in
the district. Session, supra, at 496–497. For all these
reasons, appellants demonstrated sufficient minority
cohesion and majority bloc voting to meet the second and
third Gingles requirements.
The first Gingles factor requires that a group be “suffi
ciently large and geographically compact to constitute a
majority in a single-member district.” 478 U. S., at 50.
Latinos in District 23 could have constituted a majority of
the citizen voting-age population in the district, and in
fact did so under Plan 1151C. Though it may be possible
for a citizen voting-age majority to lack real electoral
opportunity, the Latino majority in old District 23 did
possess electoral opportunity protected by §2.
While the District Court stated that District 23 had not
been an effective opportunity district under Plan 1151C, it
recognized the district was “moving in that direction.”
Session, 298 F. Supp. 2d, at 489. Indeed, by 2002 the
Latino candidate of choice in District 23 won the majority
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of the district’s votes in 13 out of 15 elections for statewide
officeholders. Id., at 518 (Ward, J., concurring in part and
dissenting in part). And in the congressional race, Bonilla
could not have prevailed without some Latino support,
limited though it was. State legislators changed District
23 specifically because they worried that Latinos would
vote Bonilla out of office. Id., at 488.
Furthermore, to the extent the District Court suggested
that District 23 was not a Latino opportunity district in
2002 simply because Bonilla prevailed, see id., at 488, 495,
it was incorrect. The circumstance that a group does not
win elections does not resolve the issue of vote dilution.
We have said that “the ultimate right of §2 is equality of
opportunity, not a guarantee of electoral success for mi
nority-preferred candidates of whatever race.” De Grandy,
512 U. S., at 1014, n. 11. In old District 23 the increase in
Latino voter registration and overall population, Session,
298 F. Supp. 2d, at 523 (Ward, J., concurring in part and
dissenting in part), the concomitant rise in Latino voting
power in each successive election, the near-victory of the
Latino candidate of choice in 2002, and the resulting
threat to the Bonilla incumbency, were the very reasons
that led the State to redraw the district lines. Since the
redistricting prevented the immediate success of the
emergent Latino majority in District 23, there was a de
nial of opportunity in the real sense of that term.
Plan 1374C’s version of District 23, by contrast, “is
unquestionably not a Latino opportunity district.” Id., at
496. Latinos, to be sure, are a bare majority of the voting-
age population in new District 23, but only in a hollow
sense, for the parties agree that the relevant numbers
must include citizenship. This approach fits the language
of §2 because only eligible voters affect a group’s opportu
nity to elect candidates. In sum, appellants have estab
lished that Latinos could have had an opportunity district
in District 23 had its lines not been altered and that they
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do not have one now.
Considering the district in isolation, the three Gingles
requirements are satisfied. The State argues, nonetheless,
that it met its §2 obligations by creating new District 25 as
an offsetting opportunity district. It is true, of course, that
“States retain broad discretion in drawing districts to
comply with the mandate of §2.” Shaw v. Hunt, 517 U. S.
899, 917, n. 9 (1996) (Shaw II). This principle has limits,
though. The Court has rejected the premise that a State
can always make up for the less-than-equal opportunity of
some individuals by providing greater opportunity to
others. See id., at 917 (“The vote-dilution injuries suffered
by these persons are not remedied by creating a safe ma
jority-black district somewhere else in the State”). As set
out below, these conflicting concerns are resolved by allow
ing the State to use one majority-minority district to com
pensate for the absence of another only when the racial
group in each area had a §2 right and both could not be
accommodated.
As to the first Gingles requirement, it is not enough that
appellants show the possibility of creating a majority-
minority district that would include the Latinos in District
23. See Shaw II, supra, at 917, n. 9 (rejecting the idea
that “a §2 plaintiff has the right to be placed in a majority-
minority district once a violation of the statute is shown”).
If the inclusion of the plaintiffs would necessitate the
exclusion of others, then the State cannot be faulted for its
choice. That is why, in the context of a challenge to the
drawing of district lines, “the first Gingles condition re
quires the possibility of creating more than the existing
number of reasonably compact districts with a sufficiently
large minority population to elect candidates of its choice.”
De Grandy, supra, at 1008.
The District Court found that the current plan contains
six Latino opportunity districts and that seven reasonably
compact districts could not be drawn. Appellant GI Forum
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presented a plan with seven majority-Latino districts, but
the District Court found these districts were not reasona
bly compact, in part because they took in “disparate and
distant communities.” Session, supra, at 491–492, and n.
125. While there was some evidence to the contrary, the
court’s resolution of the conflicting evidence was not
clearly erroneous.
A problem remains, though, for the District Court failed
to perform a comparable compactness inquiry for Plan
1374C as drawn. De Grandy requires a comparison be
tween a challenger’s proposal and the “existing number of
reasonably compact districts.” 512 U. S., at 1008. To be
sure, §2 does not forbid the creation of a noncompact
majority-minority district. Bush v. Vera, 517 U. S., at 999
(KENNEDY, J., concurring). The noncompact district can
not, however, remedy a violation elsewhere in the State.
See Shaw II, supra, at 916 (unless “the district contains a
‘geographically compact’ population” of the racial group,
“where that district sits, ‘there neither has been a wrong
nor can be a remedy’ ” (quoting Growe, 507 U. S., at 41)).
Simply put, the State’s creation of an opportunity district
for those without a §2 right offers no excuse for its failure
to provide an opportunity district for those with a §2 right.
And since there is no §2 right to a district that is not
reasonably compact, see Abrams, 521 U. S., at 91–92, the
creation of a noncompact district does not compensate for
the dismantling of a compact opportunity district.
THE CHIEF JUSTICE claims compactness should be only
a factor in the analysis, see post, at 16 (opinion concurring
in part, concurring in judgment in part, and dissenting in
part), but his approach comports neither with our prece
dents nor with the nature of the right established by §2.
De Grandy expressly stated that the first Gingles prong
looks only to the number of “reasonably compact districts.”
512 U. S., at 1008. Shaw II, moreover, refused to consider
a noncompact district as a possible remedy for a §2 viola
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Opinion of the Court

tion. 517 U. S., at 916. It is true Shaw II applied this
analysis in the context of a State’s using compliance with
§2 as a defense to an equal protection challenge, but the
holding was clear: A State cannot remedy a §2 violation
through the creation of a noncompact district. Ibid. Shaw
II also cannot be distinguished based on the relative loca
tion of the remedial district as compared to the district of
the alleged violation. The remedial district in Shaw II had
a 20% overlap with the district the plaintiffs sought, but
the Court stated “[w]e do not think this degree of incorpo
ration could mean [the remedial district] substantially
addresses the §2 violation.” Id., at 918; see also De
Grandy, supra, at 1019 (expressing doubt about the idea
that even within the same county, vote dilution in half the
county could be compensated for in the other half). The
overlap here is not substantially different, as the majority
of Latinos who were in the old District 23 are still in the
new District 23, but no longer have the opportunity to
elect their candidate of choice.
Apart from its conflict with De Grandy and Shaw II,
THE CHIEF JUSTICE’s approach has the deficiency of creat
ing a one-way rule whereby plaintiffs must show compact
ness but States need not (except, it seems, when using §2
as a defense to an equal protection challenge). THE CHIEF
JUSTICE appears to accept that a plaintiff, to make out a
§2 violation, must show he or she is part of a racial group
that could form a majority in a reasonably compact dis
trict. Post, at 15. If, however, a noncompact district can
not make up for the lack of a compact district, then this is
equally true whether the plaintiff or the State proposes
the noncompact district.
The District Court stated that Plan 1374C created “six
Gingles Latino” districts, Session, 298 F. Supp. 2d, at 498,
but it failed to decide whether District 25 was reasonably
compact for §2 purposes. It recognized there was a 300
mile gap between the Latino communities in District 25,
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and a similarly large gap between the needs and interests
of the two groups. Id., at 502. After making these obser
vations, however, it did not make any finding about com
pactness. Id., at 502–504. It ruled instead that, despite
these concerns, District 25 would be an effective Latino
opportunity district because the combined voting strength
of both Latino groups would allow a Latino-preferred
candidate to prevail in elections. Ibid. The District
Court’s general finding of effectiveness cannot substitute
for the lack of a finding on compactness, particularly
because the District Court measured effectiveness simply
by aggregating the voting strength of the two groups of
Latinos. Id., at 503–504. Under the District Court’s
approach, a district would satisfy §2 no matter how non-
compact it was, so long as all the members of a racial
group, added together, could control election outcomes.
The District Court did evaluate compactness for the
purpose of deciding whether race predominated in the
drawing of district lines. The Latinos in the Rio Grande
Valley and those in Central Texas, it found, are “disparate
communities of interest,” with “differences in socio
economic status, education, employment, health, and other
characteristics.” Id., at 512. The court’s conclusion that
the relative smoothness of the district lines made the
district compact, despite this combining of discrete com
munities of interest, is inapposite because the court ana
lyzed the issue only for equal protection purposes. In the
equal protection context, compactness focuses on the
contours of district lines to determine whether race was
the predominant factor in drawing those lines. See Miller
v. Johnson, 515 U. S. 900, 916–917 (1995). Under §2, by
contrast, the injury is vote dilution, so the compactness
inquiry embraces different considerations. “The first
Gingles condition refers to the compactness of the minority
population, not to the compactness of the contested dis
trict.” Vera, supra, at 997 (KENNEDY, J., concurring); see
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Opinion of the Court

also Abrams, supra, at 111 (BREYER, J., dissenting) (com
pactness to show a violation of equal protection, “which
concerns the shape or boundaries of a district, differs from
§2 compactness, which concerns a minority group’s com
pactness”); Shaw II, supra, at 916 (the inquiry under §2 is
whether “the minority group is geographically compact”
(internal quotation marks omitted)).
While no precise rule has emerged governing §2 com
pactness, the “inquiry should take into account ‘traditional
districting principles such as maintaining communities of
interest and traditional boundaries.’ ” Abrams, supra, at
92 (quoting Vera, 517 U. S., at 977 (plurality opinion)); see
also id., at 979 (A district that “reaches out to grab small
and apparently isolated minority communities” is not
reasonably compact). The recognition of nonracial com
munities of interest reflects the principle that a State may
not “assum[e] from a group of voters’ race that they ‘think
alike, share the same political interests, and will prefer
the same candidates at the polls.’ ” Miller, supra, at 920
(quoting Shaw v. Reno, 509 U. S. 630, 647 (1993)). In the
absence of this prohibited assumption, there is no basis to
believe a district that combines two far-flung segments of
a racial group with disparate interests provides the oppor
tunity that §2 requires or that the first Gingles condition
contemplates. “The purpose of the Voting Rights Act is to
prevent discrimination in the exercise of the electoral
franchise and to foster our transformation to a society that
is no longer fixated on race.” Georgia v. Ashcroft, 539 U. S.
461, 490 (2003); cf. post, at 20 (opinion of ROBERTS, C. J.).
We do a disservice to these important goals by failing to
account for the differences between people of the same
race.
While the District Court recognized the relevant differ
ences, by not performing the compactness inquiry it failed
to account for the significance of these differences under
§2. In these cases the District Court’s findings regarding
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the different characteristics, needs, and interests of the
Latino community near the Mexican border and the one in
and around Austin are well supported and uncontested.
Legitimate yet differing communities of interest should
not be disregarded in the interest of race. The practical
consequence of drawing a district to cover two distant,
disparate communities is that one or both groups will be
unable to achieve their political goals. Compactness is,
therefore, about more than “style points,” post, at 3 (opin
ion of ROBERTS, C. J.); it is critical to advancing the ulti
mate purposes of §2, ensuring minority groups equal
“opportunity . . . to participate in the political process and
to elect representatives of their choice.” 42 U. S. C.
§1973(b). (And if it were just about style points, it is
difficult to understand why a plaintiff would have to pro
pose a compact district to make out a §2 claim.) As wit
nesses who know the south and west Texas culture and
politics testified, the districting in Plan 1374C “could
make it more difficult for thinly financed Latino-preferred
candidates to achieve electoral success and to provide
adequate and responsive representation once elected.”
Session, 298 F. Supp. 2d, at 502; see also id., at 503
(Elected officials from the region “testified that the size
and diversity of the newly-configured districts could make
it more difficult for the constituents in the Rio Grande
Valley to control election outcomes”). We do not question
the District Court’s finding that the groups’ combined
voting strength would enable them to elect a candidate
each prefers to the Anglos’ candidate of choice. We also
accept that in some cases members of a racial group in
different areas—for example, rural and urban communi
ties—could share similar interests and therefore form a
compact district if the areas are in reasonably close prox
imity. See Abrams, supra, at 111–112 (BREYER, J., dis
senting). When, however, the only common index is race
and the result will be to cause internal friction, the State
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Opinion of the Court

cannot make this a remedy for a §2 violation elsewhere.
We emphasize it is the enormous geographical distance
separating the Austin and Mexican-border communities,
coupled with the disparate needs and interests of these
populations—not either factor alone—that renders District
25 noncompact for §2 purposes. The mathematical possi
bility of a racial bloc does not make a district compact.
Since District 25 is not reasonably compact, Plan 1374C
contains only five reasonably compact Latino opportunity
districts. Plan 1151C, by contrast, created six such dis
tricts. The District Court did not find, and the State does
not contend, that any of the Latino opportunity districts in
Plan 1151C are noncompact. Contrary to THE CHIEF
JUSTICE’s suggestion, post, at 10–11, moreover, the Latino
population in old District 23 is, for the most part, in closer
geographic proximity than is the Latino population in new
District 25. More importantly, there has been no conten
tion that different pockets of the Latino population in old
District 23 have divergent needs and interests, and it is
clear that, as set out below, the Latino population of Dis
trict 23 was split apart particularly because it was becom
ing so cohesive. The Latinos in District 23 had found an
efficacious political identity, while this would be an en
tirely new and difficult undertaking for the Latinos in
District 25, given their geographic and other differences.
Appellants have thus satisfied all three Gingles re
quirements as to District 23, and the creation of new
District 25 does not remedy the problem.
C
We proceed now to the totality of the circumstances, and
first to the proportionality inquiry, comparing the per
centage of total districts that are Latino opportunity dis
tricts with the Latino share of the citizen voting-age popu
lation. As explained in De Grandy, proportionality is “a
relevant fact in the totality of circumstances.” 512 U. S.,
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at 1000. It does not, however, act as a “safe harbor” for
States in complying with §2. Id., at 1017–1018; see also
id., at 1025 (O’Connor, J., concurring) (proportionality “is
always relevant evidence in determining vote dilution, but
is never itself dispositive”); id., at 1027–1028 (KENNEDY,
J., concurring in part and concurring in judgment) (pro
portionality has “some relevance,” though “placing undue
emphasis upon proportionality risks defeating the goals
underlying the Voting Rights Act”). If proportionality
could act as a safe harbor, it would ratify “an unexplored
premise of highly suspect validity: that in any given voting
jurisdiction . . . , the rights of some minority voters under
§2 may be traded off against the rights of other members
of the same minority class.” Id., at 1019; see also Shaw II,
517 U. S., at 916–918.
The State contends that proportionality should be de
cided on a regional basis, while appellants say their claim
requires the Court to conduct a statewide analysis. In De
Grandy, the plaintiffs “passed up the opportunity to frame
their dilution claim in statewide terms.” 512 U. S., at
1022. Based on the parties’ apparent agreement that the
proper frame of reference was the Dade County area, the
Court used that area to decide proportionality. Id., at
1022–1023. In these cases, on the other hand, appellants
allege an “injury to African American and Hispanic voters
throughout the State.” Complaint in Civ. Action No. 03C–
356 (ED Tex.), pp. 1–2; see also First Amended Complaint
in Civ. Action No. 2:03–354 (ED Tex.), pp. 1, 5, 7; Plain
tiff’s First Amended Complaint in Civ. Action No.
2:03cv354 etc. (ED Tex.), pp. 4–5. The District Court,
moreover, expressly considered the statewide proportion
ality argument. As a result, the question of the proper
geographic scope for assessing proportionality now pre
sents itself.
We conclude the answer in these cases is to look at
proportionality statewide. The State contends that the
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Opinion of the Court

seven districts in south and west Texas correctly delimit
the boundaries for proportionality because that is the only
area of the State where reasonably compact Latino oppor
tunity districts can be drawn. This argument, however,
misunderstands the role of proportionality. We have
already determined, under the first Gingles factor, that
another reasonably compact Latino district can be drawn.
The question now is whether the absence of that addi
tional district constitutes impermissible vote dilution.
This inquiry requires an “ ‘intensely local appraisal’ ” of the
challenged district. Gingles, 478 U. S., at 79 (quoting
Rogers v. Lodge, 458 U. S. 613, 622 (1982)); see also
Gingles, supra, at 101 (O’Connor, J., concurring in judg
ment). A local appraisal is necessary because the right to
an undiluted vote does not belong to the “minority as a
group,” but rather to “its individual members.” Shaw II,
supra, at 917. And a State may not trade off the rights of
some members of a racial group against the rights of other
members of that group. See De Grandy, supra, at 1019;
Shaw II, supra, at 916–918. The question is therefore not
“whether line-drawing in the challenged area as a whole
dilutes minority voting strength,” post, at 13 (opinion of
ROBERTS, C. J.), but whether line-drawing dilutes the
voting strength of the Latinos in District 23.
The role of proportionality is not to displace this local
appraisal or to allow the State to trade off the rights of
some against the rights of others. Instead, it provides
some evidence of whether “the political processes leading
to nomination or election in the State or political subdivi
sion are not equally open to participation.” 42 U. S. C.
§1973(b). For this purpose, the State’s seven-district area
is arbitrary. It just as easily could have included six or
eight districts. Appellants have alleged statewide vote
dilution based on a statewide plan, so the electoral oppor
tunities of Latinos across the State can bear on whether
the lack of electoral opportunity for Latinos in District 23
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is a consequence of Plan 1374C’s redrawing of lines or
simply a consequence of the inevitable ‘win some, lose
some’ in a State with racial bloc voting. Indeed, several of
the other factors in the totality of circumstances have been
characterized with reference to the State as a whole.
Gingles, supra, at 44–45 (listing Senate Report factors).
Particularly given the presence of racially polarized vot
ing—and the possible submergence of minority votes—
throughout Texas, it makes sense to use the entire State
in assessing proportionality.
Looking statewide, there are 32 congressional districts.
The five reasonably compact Latino opportunity districts
amount to roughly 16% of the total, while Latinos make up
22% of Texas’ citizen voting-age population. (Appellant GI
Forum claims, based on data from the 2004 American
Community Survey of the U. S. Census Bureau, that
Latinos constitute 24.5% of the statewide citizen voting-
age population, but as this figure was neither available at
the time of the redistricting, nor presented to the District
Court, we accept the District Court’s finding of 22%.)
Latinos are, therefore, two districts shy of proportional
representation. There is, of course, no “magic parameter,”
De Grandy, 512 U. S., at 1017, n. 14, and “rough propor
tionality,” id., at 1023, must allow for some deviations.
We need not decide whether the two-district deficit in
these cases weighs in favor of a §2 violation. Even if Plan
1374C’s disproportionality were deemed insubstantial,
that consideration would not overcome the other evidence
of vote dilution for Latinos in District 23. “[T]he degree of
probative value assigned to proportionality may vary with
other facts,” id., at 1020, and the other facts in these cases
convince us that there is a §2 violation.
District 23’s Latino voters were poised to elect their
candidate of choice. They were becoming more politically
active, with a marked and continuous rise in Spanish-
surnamed voter registration. See Lichtman Report, App.
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142–143. In successive elections Latinos were voting
against Bonilla in greater numbers, and in 2002 they
almost ousted him. Webb County in particular, with a
94% Latino population, spurred the incumbent’s near
defeat with dramatically increased turnout in 2002. See
2004 Almanac 1579. In response to the growing participa
tion that threatened Bonilla’s incumbency, the State
divided the cohesive Latino community in Webb County,
moving about 100,000 Latinos to District 28, which was
already a Latino opportunity district, and leaving the rest
in a district where they now have little hope of electing
their candidate of choice.
The changes to District 23 undermined the progress of a
racial group that has been subject to significant voting-
related discrimination and that was becoming increasingly
politically active and cohesive. Cf. De Grandy, supra, at
1014 (finding no §2 violation where “the State’s scheme
would thwart the historical tendency to exclude Hispanics,
not encourage or perpetuate it”); White v. Regester, 412
U. S. 755, 769 (1973) (looking in the totality of the circum
stances to whether the proposed districting would “remedy
the effects of past and present discrimination against
Mexican-Americans, and to bring the community into the
full stream of political life of the county and State by
encouraging their further registration, voting, and other
political activities” (citation and internal quotation marks
omitted)). The District Court recognized “the long history
of discrimination against Latinos and Blacks in Texas,”
Session, 298 F. Supp. 2d, at 473, and other courts have
elaborated on this history with respect to electoral proc
esses:
“Texas has a long, well-documented history of dis
crimination that has touched upon the rights of Afri
can-Americans and Hispanics to register, to vote, or to
participate otherwise in the electoral process. Devices
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such as the poll tax, an all-white primary system, and
restrictive voter registration time periods are an un
fortunate part of this State’s minority voting rights
history. The history of official discrimination in the
Texas election process—stretching back to Recon
struction—led to the inclusion of the State as a cov
ered jurisdiction under Section 5 in the 1975 amend
ments to the Voting Rights Act. Since Texas became a
covered jurisdiction, the Department of Justice has
frequently interposed objections against the State and
its subdivisions.” Vera v. Richards, 861 F. Supp. 1304,
1317 (SD Tex. 1994) (citations omitted).
See also Vera, 517 U. S., at 981–982; Regester, supra, at
767–769. In addition, the “political, social, and economic
legacy of past discrimination” for Latinos in Texas, Ses
sion, supra, at 492, may well “hinder their ability to par
ticipate effectively in the political process,” Gingles, 478
U. S., at 45 (citing Senate Report factors).
Against this background, the Latinos’ diminishing
electoral support for Bonilla indicates their belief he was
“unresponsive to the particularized needs of the members
of the minority group.” Ibid. (same). In essence the State
took away the Latinos’ opportunity because Latinos were
about to exercise it. This bears the mark of intentional
discrimination that could give rise to an equal protection
violation. Even if we accept the District Court’s finding
that the State’s action was taken primarily for political,
not racial, reasons, Session, supra, at 508, the redrawing
of the district lines was damaging to the Latinos in Dis
trict 23. The State not only made fruitless the Latinos’
mobilization efforts but also acted against those Latinos
who were becoming most politically active, dividing them
with a district line through the middle of Laredo.
Furthermore, the reason for taking Latinos out of Dis
trict 23, according to the District Court, was to protect
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Opinion of the Court

Congressman Bonilla from a constituency that was in
creasingly voting against him. The Court has noted that
incumbency protection can be a legitimate factor in dis
tricting, see Karcher v. Daggett, 462 U. S., at 740, but
experience teaches that incumbency protection can take
various forms, not all of them in the interests of the con
stituents. If the justification for incumbency protection is
to keep the constituency intact so the officeholder is ac
countable for promises made or broken, then the protec
tion seems to accord with concern for the voters. If, on the
other hand, incumbency protection means excluding some
voters from the district simply because they are likely to
vote against the officeholder, the change is to benefit the
officeholder, not the voters. By purposely redrawing lines
around those who opposed Bonilla, the state legislature
took the latter course. This policy, whatever its validity in
the realm of politics, cannot justify the effect on Latino
voters. See Gingles, supra, at 45 (citing Senate Report
factor of whether “the policy underlying” the State’s action
“is tenuous”). The policy becomes even more suspect when
considered in light of evidence suggesting that the State
intentionally drew District 23 to have a nominal Latino
voting-age majority (without a citizen voting-age majority)
for political reasons. Session, supra, at 497. This use of
race to create the façade of a Latino district also weighs in
favor of appellants’ claim.
Contrary to THE CHIEF JUSTICE’s suggestion that we are
reducing the State’s needed flexibility in complying with
§2, see post, at 15–16, the problem here is entirely of the
State’s own making. The State chose to break apart a
Latino opportunity district to protect the incumbent con
gressman from the growing dissatisfaction of the cohesive
and politically active Latino community in the district.
The State then purported to compensate for this harm by
creating an entirely new district that combined two groups
of Latinos, hundreds of miles apart, that represent differ
36 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

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Opinion of the Court

ent communities of interest. Under §2, the State must be
held accountable for the effect of these choices in denying
equal opportunity to Latino voters. Notwithstanding
these facts, THE CHIEF JUSTICE places great emphasis on
the District Court’s statement that “new District 25 is ‘a
more effective Latino opportunity district than Congres
sional District 23 had been.’ ” Post, at 2–3 (quoting Ses
sion, 298 F. Supp. 2d, at 503). Even assuming this state
ment, expressed in the context of summarizing witnesses’
testimony, qualifies as a finding of the District Court, two
points make it of minimal relevance. First, as previously
noted, the District Court measured the effectiveness of
District 25 without accounting for the detrimental conse
quences of its compactness problems. Second, the District
Court referred only to how effective District 23 “had been,”
not to how it would operate today, a significant distinction
given the growing Latino political power in the district.
Based on the foregoing, the totality of the circumstances
demonstrates a §2 violation. Even assuming Plan 1374C
provides something close to proportional representation
for Latinos, its troubling blend of politics and race—and
the resulting vote dilution of a group that was beginning
to achieve §2’s goal of overcoming prior electoral discrimi
nation—cannot be sustained.
D
Because we hold Plan 1374C violates §2 in its redrawing
of District 23, we do not address appellants’ claims that
the use of race and politics in drawing that district vio
lates the First Amendment and equal protection. We also
need not confront appellants’ claim of an equal protection
violation in the drawing of District 25. The districts in
south and west Texas will have to be redrawn to remedy
the violation in District 23, and we have no cause to pass
on the legitimacy of a district that must be changed. See
Session, supra, at 528 (Ward, J., concurring in part and
 Cite as: 548 U. S. ____ (2006) 37

Opinion of KENNEDY, J.

dissenting in part). District 25, in particular, was formed
to compensate for the loss of District 23 as a Latino oppor
tunity district, and there is no reason to believe District 25
will remain in its current form once District 23 is brought
into compliance with §2. We therefore vacate the District
Court’s judgment as to these claims.
IV
Appellants also challenge the changes to district lines in
the Dallas area, alleging they dilute African-American
voting strength in violation of §2 of the Voting Rights Act.
Specifically, appellants contend that an African-American
minority effectively controlled District 24 under Plan
1151C, and that §2 entitles them to this district.
Before Plan 1374C was enacted, District 24 had elected
Anglo Democrat Martin Frost to Congress in every elec
tion since 1978. Session, supra, at 481–482. Anglos were
the largest racial group in the district, with 49.8% of the
citizen voting-age population, and third largest were
Latinos, with 20.8%. State’s Exh. 57, App. 339. African-
Americans were the second-largest group, with 25.7% of
the citizen voting-age population, ibid., and they voted
consistently for Frost. The new plan broke apart this
racially diverse district, assigning its pieces into several
other districts.
Accepting that African-Americans would not be a major
ity of the single-member district they seek, and that Afri
can-Americans do not vote cohesively with Hispanics,
Session, supra, at 484, appellants nonetheless contend
African-Americans had effective control of District 24. As
the Court has done several times before, we assume for
purposes of this litigation that it is possible to state a §2
claim for a racial group that makes up less than 50% of
the population. See De Grandy, 512 U. S., at 1009; Voino
vich v. Quilter, 507 U. S. 146, 154 (1993); Gingles, 478 U. S.,
at 46–47, n. 12. Even on the assumption that the first
38 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

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Opinion of KENNEDY, J.

Gingles prong can accommodate this claim, however,
appellants must show they constitute “a sufficiently large
minority to elect their candidate of choice with the assis
tance of cross-over votes.” Voinovich, supra, at 158 (em
phasis omitted).
The relatively small African-American population can
meet this standard, according to appellants, because they
constituted 64% of the voters in the Democratic primary.
Since a significant number of Anglos and Latinos voted for
the Democrat in the general election, the argument goes,
African-American control of the primary translated into
effective control of the entire election.
The District Court found, however, that African-
Americans could not elect their candidate of choice in the
primary. In support of this finding, it relied on testimony
that the district was drawn for an Anglo Democrat, the
fact that Frost had no opposition in any of his primary
elections since his incumbency began, and District 24’s
demographic similarity to another district where an Afri
can-American candidate failed when he ran against an
Anglo. Session, 298 F. Supp. 2d, at 483–484. “In short,
that Anglo Democrats control this district is,” according to
the District Court, “the most rational conclusion.” Id., at
484.
Appellants fail to demonstrate clear error in this find
ing. In the absence of any contested Democratic primary
in District 24 over the last 20 years, no obvious bench
mark exists for deciding whether African-Americans could
elect their candidate of choice. The fact that African-
Americans voted for Frost—in the primary and general
elections—could signify he is their candidate of choice.
Without a contested primary, however, it could also be
interpreted to show (assuming racial bloc voting) that
Anglos and Latinos would vote in the Democratic primary
in greater numbers if an African-American candidate of
choice were to run, especially given Texas’ open primary
 Cite as: 548 U. S. ____ (2006) 39

Opinion of KENNEDY, J.

system. The District Court heard trial testimony that
would support both explanations, and we cannot say that
it erred in crediting the testimony that endorsed the latter
interpretation. Compare App. 242–243 (testimony of
Tarrant County Precinct Administrator that Frost is the
“favored candidate of the African-American community”
and that he has gone unopposed in primary challenges
because he “serves [the African-American community’s]
interests”), with id., at 262–264 (testimony of Congress
woman Eddie Bernice Johnson that District 24 was drawn
for an Anglo Democrat (Martin Frost, in particular) in
1991 by splitting a minority community), and id., at 277–
280 (testimony of State Representative Ron Wilson that
African-Americans did not have the ability to elect their
preferred candidate, particularly an African-American
candidate, in District 24 and that Anglo Democrats in
such “influence [d]istricts” were not fully responsive to the
needs of the African-American community).
The analysis submitted by appellants’ own expert was
also inconsistent. Of the three elections for statewide
office he examined, in District 24 the African-American
candidate of choice would have won one, lost one, and in
the third the African-American vote was split. See Licht
man Report, id., at 75–76, 92–96; State’s Exh. 20 in Civ.
Action No. 2:03–CV–354 (ED Tex.), p. 138; State’s Exh. 21
in Civ. Action No. 2:03–CV–354 (ED Tex.). The District
Court committed no clear error in rejecting this question
able showing that African-Americans have the ability to
elect their candidate of choice in favor of other evidence
that an African-American candidate of choice would not
prevail. See Anderson v. Bessemer City, 470 U. S. 564, 574
(1985) (“Where there are two permissible views of the evi
dence, the factfinder’s choice between them cannot be
clearly erroneous”).
That African-Americans had influence in the district,
Session, supra, at 485, does not suffice to state a §2 claim
40 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

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Opinion of KENNEDY, J.

in these cases. The opportunity “to elect representatives of
their choice,” 42 U. S. C. §1973(b), requires more than the
ability to influence the outcome between some candidates,
none of whom is their candidate of choice. There is no
doubt African-Americans preferred Martin Frost to the
Republicans who opposed him. The fact that African-
Americans preferred Frost to some others does not, how
ever, make him their candidate of choice. Accordingly, the
ability to aid in Frost’s election does not make the old
District 24 an African-American opportunity district for
purposes of §2. If §2 were interpreted to protect this kind
of influence, it would unnecessarily infuse race into virtu
ally every redistricting, raising serious constitutional
questions. See Georgia v. Ashcroft, 539 U. S., at 491
(KENNEDY, J., concurring).
Appellants respond by pointing to Georgia v. Ashcroft,
where the Court held that the presence of influence dis
tricts is a relevant consideration under §5 of the Voting
Rights Act. The inquiry under §2, however, concerns the
opportunity “to elect representatives of their choice,” 42
U. S. C. §1973(b), not whether a change has the purpose or
effect of “denying or abridging the right to vote,” §1973c.
Ashcroft recognized the differences between these tests,
539 U. S., at 478, and concluded that the ability of racial
groups to elect candidates of their choice is only one factor
under §5, id., at 480. So while the presence of districts
“where minority voters may not be able to elect a candi
date of choice but can play a substantial, if not decisive,
role in the electoral process” is relevant to the §5 analysis,
id., at 482, the lack of such districts cannot establish a §2
violation. The failure to create an influence district in
these cases thus does not run afoul of §2 of the Voting
Rights Act.
Appellants do not raise a district-specific political ger
rymandering claim against District 24. Even if the claim
were cognizable as part of appellants’ statewide challenge,
 Cite as: 548 U. S. ____ (2006) 41

Opinion of KENNEDY, J.

it would be unpersuasive. Just as for the statewide claim,
appellants would lack any reliable measure of partisan
fairness. JUSTICE STEVENS suggests the burden on repre
sentational rights can be measured by comparing the
success of Democrats in old District 24 with their success
in the new districts they now occupy. Post, at 31–32 (opin
ion concurring in part and dissenting in part). There is no
reason, however, why the old district has any special claim
to fairness. In fact, old District 24, no less than the old
redistricting plan as a whole, was formed for partisan
reasons. See Session, 298 F. Supp. 2d, at 484; see also
Balderas v. Texas, Civ. Action No. 6:01CV158 (ED Tex.,
Nov. 14, 2001) (per curiam), summarily aff’d, 536 U. S. 919
(2002), App. E to Juris. Statement in No. 05–276, p. 208a.
Furthermore, JUSTICE STEVENS’ conclusion that the State
has not complied with §5 of the Voting Rights Act, post, at
33–37—effectively overruling the Attorney General with
out briefing, argument, or a lower court opinion on the
issue—does not solve the problem of determining a reli
able measure of impermissible partisan effect.
* * *
We reject the statewide challenge to Texas’ redistricting
as an unconstitutional political gerrymander and the
challenge to the redistricting in the Dallas area as a viola
tion of §2 of the Voting Rights Act. We do hold that the
redrawing of lines in District 23 violates §2 of the Voting
Rights Act. The judgment of the District Court is affirmed
in part, reversed in part, and vacated in part, and the
cases are remanded for further proceedings.

It is so ordered.
 Cite as: 548 U. S. ____ (2006) 1

Opinion of STEVENS, J.

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 05–204, 05–254, 05–276 and 05–439
_________________

LEAGUE OF UNITED LATIN AMERICAN CITIZENS,
ET AL., APPELLANTS
05–204 v.
RICK PERRY, GOVERNOR OF TEXAS, ET AL.

TRAVIS COUNTY, TEXAS, ET AL., APPELLANTS
05–254 v.
RICK PERRY, GOVERNOR OF TEXAS, ET AL.

EDDIE JACKSON, ET AL., APPELLANTS
05–276 v.
RICK PERRY, GOVERNOR OF TEXAS, ET AL.

GI FORUM OF TEXAS, ET AL., APPELLANTS
05–439 v.
RICK PERRY, GOVERNOR OF TEXAS, ET AL.
ON APPEALS FROM THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF TEXAS
[June 28, 2006]

JUSTICE STEVENS, with whom JUSTICE BREYER joins as
to Parts I and II, concurring in part and dissenting in
part.
This is a suit in which it is perfectly clear that judicially
manageable standards enable us to decide the merits of a
statewide challenge to a political gerrymander. Applying
such standards, I shall explain why the wholly unneces
sary replacement of the neutral plan fashioned by the
three-judge court in Balderas v. Texas, Civ. Action No.
6:01CV158 (ED Tex., Nov. 14, 2001) (Plan 1151C or Bal
2 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

PERRY

Opinion of STEVENS, J.

deras Plan) with Plan 1374C, which creates districts with
less compact shapes, violates the Voting Rights Act, and
fragments communities of interest—all for purely partisan
purposes—violated the State’s constitutional duty to
govern impartially. Prior misconduct by the Texas Legis
lature neither excuses nor justifies that violation. Accord
ingly, while I join the Court’s decision to invalidate Dis
trict 23, I would hold that Plan 1374C is entirely invalid
and direct the District Court to reinstate Plan 1151C.
Moreover, as I shall explain, even if the remainder of the
plan were valid, the cracking of Balderas District 24 would
still be unconstitutional.
I
The maintenance of existing district boundaries is ad
vantageous to both voters and candidates. Changes, of
course, must be made after every census to equalize the
population of each district or to accommodate changes in
the size of a State’s congressional delegation. Similarly,
changes must be made in response to a finding that a
districting plan violates §2 or §5 of the Voting Rights Act,
42 U. S. C. §§1973, 1973c. But the interests in orderly
campaigning and voting, as well as in maintaining com
munication between representatives and their constitu
ents, underscore the importance of requiring that any
decision to redraw district boundaries—like any other
state action that affects the electoral process—must, at the
very least, serve some legitimate governmental purpose.
See, e.g., Burdick v. Takushi, 504 U. S. 428, 434, 440
(1992); id., at 448–450 (KENNEDY, J., joined by Blackmun
and STEVENS, JJ., dissenting). A purely partisan desire
“to minimize or cancel out the voting strength of racial or
political elements of the voting population,” Fortson v.
Dorsey, 379 U. S. 433, 439 (1965), is not such a purpose.
Because a desire to minimize the strength of Texas De
mocrats was the sole motivation for the adoption of Plan
 Cite as: 548 U. S. ____ (2006) 3

Opinion of STEVENS, J.

1374C, see Session v. Perry, 298 F. Supp. 2d 451, 470, 472
(ED Tex. 2004) (per curiam), the plan cannot withstand
constitutional scrutiny.
The districting map that Plan 1374C replaced, Plan
1151C, was not only manifestly fair and neutral, it may
legitimately be described as a milestone in Texas’ political
history because it put an end to a long history of Democ
ratic misuse of power in that State. For decades after the
Civil War, the political party associated with the former
Commander in Chief of the Union Army attracted the
support of former slaves and a handful of “carpetbaggers,”
but had no significant political influence in Texas. The
Democrats maintained their political power by excluding
black voters from participating in primary elections, see,
e.g., Smith v. Allwright, 321 U. S. 649, 656–661 (1944), by
the artful management of multimember electoral schemes,
see, e.g., White v. Regester, 412 U. S. 755, 765–770 (1973),
and, most recently, by outrageously partisan gerryman
dering, see ante, at 3–4 (opinion of KENNEDY, J.); Bush v.
Vera, 517 U. S. 952, 987–990 (1996) (appendices in plural
ity opinion), id., at 1005–1007, 1042–1045 (STEVENS, J.,
dissenting). Unfortunately, some of these tactics are not
unique to Texas Democrats; the apportionment scheme
they devised in the 1990’s is only one example of the ex
cessively gerrymandered districting plans that parties
with control of their States’ governing bodies have imple
mented in recent years. See, e.g., Cox v. Larios, 542 U. S.
947, 947–950 (2004) (STEVENS, J., joined by BREYER, J.,
concurring) (Democratic gerrymander in Georgia); Vieth v.
Jubelirer, 541 U. S. 267, 272 (2004) (plurality opinion); id.,
at 342 (STEVENS, J., dissenting) (Republican gerrymander
in Pennsylvania); Karcher v. Daggett, 462 U. S. 725, 744
(1983) (Democratic gerrymander in New Jersey); Badham
v. Eu, 694 F. Supp. 664, 666 (ND Cal. 1988), summarily
aff’d, 488 U. S. 1024 (1989) (Democratic gerrymander in
California).
4 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

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Opinion of STEVENS, J.

Despite the Texas Democratic Party’s sordid history of
manipulating the electoral process to perpetuate its stran
glehold on political power, the Texas Republican Party
managed to become the State’s majority party by 2002. If,
after finally achieving political strength in Texas, the
Republicans had adopted a new plan in order to remove
the excessively partisan Democratic gerrymander of the
1990’s, the decision to do so would unquestionably have
been supported by a neutral justification. But that is not
what happened. Instead, as the following discussion of the
relevant events that transpired in Texas following the
release of the 2000 census data demonstrates, Texas
Republicans abandoned a neutral apportionment map for
the sole purpose of manipulating district boundaries to
maximize their electoral advantage and thus create their
own impermissible stranglehold on political power.
By 2001, Texas Republicans had overcome many of the
aforementioned tactics designed to freeze the Democrats’
status as the State’s dominant party, and Republicans
controlled the governorship and the State Senate. Democ
rats, however, continued to constitute a majority of the
State House of Representatives. In March of that year,
the results of the 2000 decennial census revealed that, as
a result of its population growth, Texas was entitled to two
additional seats in the United States House of Represen
tatives, bringing the size of the Texas congressional dele
gation to 32. Texas, therefore, was required to draw 32
equipopulous districts to account for its additional repre
sentation and to comply with the one-person, one-vote
mandate of Article I, §2, see, e.g., Karcher, 462 U. S. 725.
Under Texas law, the Texas Legislature was required to
draw these new districts. See Session, 298 F. Supp. 2d, at
457–458.
The Texas Legislature, divided between a Republican
Senate and a Democratic House, did not reach agreement
on a new congressional map in the regular legislative
 Cite as: 548 U. S. ____ (2006) 5

Opinion of STEVENS, J.

session, and Governor Rick Perry declined to call a special
session. Litigation in the Texas state courts also failed to
result in a plan, as the Texas Supreme Court vacated the
map created by a state trial judge. See Perry v. Del Rio,
67 S. W. 3d 85 (2001). This left a three-judge Federal
District Court in the Eastern District of Texas with “ ‘the
unwelcome obligation of performing in the legislature’s
stead.’ ” Balderas v. Texas, Civ. Action No. 6:01CV158
(Nov. 14, 2001) (per curiam), App. E to Juris. Statement in
No. 05–276, p. 202a (hereinafter App. to Juris Statement)
(quoting Connor v. Finch, 431 U. S. 407, 415 (1977)).
After protracted proceedings which included the testi
mony of an impartial expert as well as representatives of
interested groups supporting different plans, the court
prepared its own plan. “Conscious that the primary re
sponsibility for drawing congressional districts is given to
political branches of government, and hesitant to ‘und[o]
the work of one political party for the benefit of another,’
the three-judge Balderas court sought to apply ‘only “neu
tral” redistricting standards’ when drawing Plan 1151C.”
Ante, at 4 (opinion of KENNEDY, J.) (quoting Henderson v.
Perry, 399 F. Supp. 2d 756, 768 (ED Tex. 2005)). As the
court explained, it started with a blank map of Texas,
drew in the existing districts protected by the Voting
Rights Act, located the new Districts 31 and 32 where the
population growth that produced them had occurred, and
then applied the neutral criteria of “compactness, contigu
ity, and respecting county and municipal boundaries.”
App. to Juris. Statement 205a. See id., at 206a–209a.
The District Court purposely “eschewed an effort to treat
old lines as an independent locator,” and concluded that
its plan had done much “to end most of the below-the
surface ‘ripples’ of the 1991 plan and the myriad of sub
missions before us. For example, the patently irrational
shapes of Districts 5 and 6 under the 1991 plan, widely-
cited as the most extreme but successful gerrymandering
6 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

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Opinion of STEVENS, J.

in the country, are no more.” Id., at 207a–208a.
At the conclusion of this process, the court believed that
it had fashioned a map that was “likely to produce a con
gressional delegation roughly proportional to the party
voting breakdown across the state.” Id., at 209a. Indeed,
reflecting the growing strength of the Republican Party,
the District Court’s plan, Plan 1151C, offered that party
an advantage in 20 of the 32 congressional seats. See
Session, 298 F. Supp. 2d, at 471 (describing Plan 1151C).
The State’s expert in this litigation testified that the
Balderas Plan was not biased in favor of Democrats and
that it was “[m]aybe slightly” biased in favor of Republi
cans. App. 224 (deposition of Ronald Keith Gaddie,
Ph.D.). Although groups of Latino voters challenged Plan
1151C on appeal, neither major political party did so, and
the State of Texas filed a motion asking this Court to
affirm the District Court’s judgment, which we did, see
Balderas v. Texas, 536 U. S. 919 (2002).
In the 2002 congressional elections, however, Republi
cans were not able to capitalize on the advantage that the
Balderas plan had provided them. A number of Democ
ratic incumbents were able to attract the votes of ticket-
splitters (individuals who voted for candidates from one
party in statewide elections and for a candidate from a
different party in congressional elections), and thus won
elections in some districts that favored Republicans. As a
result, Republicans carried only 15 of the districts drawn
by the Balderas court.1
——————
1 It
was apparently these electoral results that later caused the Dis
trict Court to state that “the practical effect” of Plan 1151C “was to
leave the 1991 Democratic Party gerrymander largely in place as a
‘legal’ plan.” Henderson v. Perry, 399 F. Supp. 2d 756, 768 (ED Tex.
2005); see id., at 768, n. 52. But the existence of ticket-splitting voters
hardly demonstrates that Plan 1151C was biased in favor of Democrats.
Instead, as noted above, even the State’s expert in this litigation
concluded that Plan 1151C was, if anything, biased in favor of Republi
 Cite as: 548 U. S. ____ (2006) 7

Opinion of STEVENS, J.

While the Republicans did not do as well as they had
hoped in elections for the United States House of Repre
sentatives, they made gains in the Texas House of Repre
sentatives and won a majority of seats in that body. This
gave Texas Republicans control over both bodies of the
state legislature, as well as the Governor’s mansion, for
the first time since Reconstruction.
With full control of the State’s legislative and executive
branches, the Republicans “decided to redraw the state’s
congressional districts solely for the purpose of seizing
between five and seven seats from Democratic incum
bents.” Session, 298 F. Supp. 2d, at 472 (citation and
internal quotation marks omitted). According to former
Lieutenant Governor Bill Ratliff, a highly regarded Repub
lican member of the State Senate, “political gain for the
Republicans was 110% of the motivation for the Plan, . . .
it was ‘the entire motivation.’ ” Id., at 473 (quoting trial
transcript). Or, as the District Court stated in the first of
its two decisions in this litigation, “[t]here is little question
but that the single-minded purpose of the Texas Legisla
ture in enacting Plan 1374C was to gain partisan advan
tage.” Id., at 470. See also ante, at 5 (quoting District
Court’s conclusion). Indeed, as the State itself argued
before the District Court: “The overwhelming evidence
demonstrated that partisan gain was the motivating force
behind the decision to redistrict in 2003.” State Defen
dants’ Post-Trial Brief in No. 2:03–CV–354 (ED Tex.), p.
51 (hereinafter State Post-Trial Brief).
This desire for political gain led to a series of dramatic
confrontations between Republicans and Democrats, and
——————
cans. Nor do the circumstances surrounding the replacement of Plan
1151C suggest that the legislature was motivated by a misimpression
that Plan 1151C was unfair to Republicans, and accordingly should be
replaced with a more equitable map. Rather, as discussed in detail
below, it is clear that the sole motivation for enacting a new districting
map was to maximize Republican advantage.
8 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

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Opinion of STEVENS, J.

ultimately resulted in the adoption of a plan that violated
the Voting Rights Act. The legislature did not pass a new
map in the regular 2003 session, in part because Democ
ratic House members absented themselves and thus de
nied the body a quorum. Governor Perry then called a
special session to take up congressional redistricting—the
same step he had declined to take in 2001 after the release
of the decennial census figures, when Republicans lacked
a majority in the House. During the first special session,
the House approved a new congressional map, but the
Senate’s longstanding tradition requiring two-thirds of
that body to support a measure before the full Senate will
consider it allowed Democrats to block the plan.
Lieutenant Governor Dewhurst then announced that he
would suspend operation of the two-thirds rule in any
future special session considering congressional redistrict
ing. Nonetheless, in a second special session, Senate
Democrats again prevented the passage of a new district
ing map by leaving the State and depriving the Senate of a
quorum. When a lone Senate Democrat returned to Texas,
Governor Perry called a third special session to consider
congressional redistricting.
During that third special session, the State Senate and
the State House passed maps that would have apparently
avoided any violation of the Voting Rights Act, because
they would have, inter alia, essentially preserved Balderas
District 23, a majority-Latino district in southwest Texas,
and Balderas District 24, a majority-minority district in
the Dallas-Fort Worth area, where black voters consti
tuted a significant majority of voters in the Democratic
primary and usually elected their candidate of choice in
the general election. Representative Phil King, the redis
tricting legislation’s chief sponsor in the Texas House, had
previously proposed fragmenting District 24, but, after
lawyers reviewed the map, King expressed concern that
redrawing District 24 might violate the Voting Rights Act,
 Cite as: 548 U. S. ____ (2006) 9

Opinion of STEVENS, J.

and he drafted a new map that left District 24 largely
unchanged.
Nonetheless, the conferees seeking to reconcile the
House and Senate plans produced a map that, as part of
its goal of maximizing Republican political advantage,
significantly altered both Districts 23 and 24 as they had
existed in the Balderas Plan. Balderas District 23 was
extended north to take in roughly 100,000 new people who
were predominately Anglo and Republican, and was also
moved west, thus splitting Webb County and the City of
Laredo, and pushing roughly 100,000 people who were
predominately Latino and Democratic into an adjacent
district. Session, 298 F. Supp. 2d, at 488–489. Black
voters who previously resided in Balderas District 24 were
fragmented into five new districts, each of which is pre
dominately Anglo and Republican. See App. 104–106.
Representative King testified at trial that District 24 was
cracked even though cracking the district was not “ ‘the
path of least resistance’ ” in terms of avoiding Voting
Rights Act liability, because leaving Balderas District 24
intact would not “accomplish our political objectives.”
State Post-Trial Brief 51–52 (quoting transcript). This
map was ultimately enacted into law as Plan 1374C.
The overall effect of Plan 1374C was to shift more than
eight million Texans into new districts, and to split more
counties into more pieces than the Balderas Plan. More
over, the 32 districts in Plan 1374C are, on average, much
less compact under either of two standard measures than
their counterparts had been under the Balderas Plan. See
App. 177–178 (expert report of Professor Gaddie).2
Numerous parties filed suit in federal court challenging
——————
2 These two standard measures of compactness are the perimeter-to

area score, which compares the relative length of the perimeter of a
district to its area, and the smallest circle score, which compares the
ratio of space in the district to the space in the smallest circle that
could encompass the district. App. 178.
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Plan 1374C on the grounds that it violated §2 of the Vot
ing Rights Act and that it constituted an unconstitutional
partisan gerrymander. A three-judge panel—two of whom
also were members of the Balderas court—rejected these
challenges, over Judge Ward’s partial dissent on the §2
claims. See Session, 298 F. Supp. 2d 451. Responding to
plaintiffs’ appeals, we remanded for reconsideration in
light of Vieth, 541 U. S. 267. See 543 U. S. 941 (2004).
In a characteristically thoughtful opinion written by
Judge Higginbotham, the District Court again rejected all
challenges to the constitutionality of Plan 1374C. See
Henderson, 399 F. Supp. 2d 756. It correctly found that
the Constitution does not prohibit a state legislature from
redrawing congressional districts in the middle of a census
cycle, see id., at 766, and it also correctly recognized that
this Court has not yet endorsed clear standards for judg
ing the validity of partisan gerrymanders, see id., at 760–
762. Because the District Court’s original decision, and its
reconsideration of the case in the light of the several opin
ions in Vieth v. Jubelirer, are successive chapters in the
saga that began with Balderas, it is appropriate to quote
this final comment from that opinion before addressing the
principal question that is now presented. The Balderas
court concluded:
“Finally, to state directly what is implicit in all that
we have said: political gerrymandering, a purely par
tisan exercise, is inappropriate for a federal court
drawing a congressional redistricting map. Even at
the hands of a legislative body, political gerrymander
ing is much a bloodfeud, in which revenge is exacted
by the majority against its rival. We have left it to the
political arena, as we must and wisely should. We do
so because our role is limited and not because we see
gerrymandering as other than what it is: an abuse of
power that, at its core, evinces a fundamental distrust
 Cite as: 548 U. S. ____ (2006) 11

Opinion of STEVENS, J.

of voters, serving the self-interest of the political par
ties at the expense of the public good.” App. to Juris.
Statement 209a–210a (footnote omitted).
II
The unique question of law that is raised in this appeal is
one that the Court has not previously addressed. That
narrow question is whether it was unconstitutional for
Texas to replace a lawful districting plan “in the middle of
a decade, for the sole purpose of maximizing partisan
advantage.” Juris. Statement in No. 05–276, p. i. This
question is both different from, and simpler than, the
principal question presented in Vieth v. Jubelirer, in which
the “ ‘lack of judicially discoverable and manageable stan
dards’ ” prevented the plurality from deciding the merits of a
statewide challenge to a political gerrymander. 541 U. S., at
277–278.
As the State points out, “in every political-
gerrymandering claim the Court has considered, the focus
has been on the map itself, not on the decision to create
the map in the first place.” Brief for State Appellees 33.
In defense of the map itself, rather than the basic decision
whether to draw the map in the first place, the State notes
that Plan 1374C’s district borders frequently follow county
lines and other neutral criteria. At what the State de
scribes as the relevant “level of granularity,” the State
correctly points out that appellants have not even at
tempted to argue that every district line was motivated
solely for partisan gain. Ibid. See also ante, at 11 (opinion
of KENNEDY, J.) (noting that “partisan aims did not guide
every line” in Plan 1374C). Indeed, the multitude of
“granular” decisions that are made during redistricting
was part of why the Vieth plurality concluded, in the
context of a statewide challenge to a redistricting plan
promulgated in response to a legal obligation to redistrict,
that there are no manageable standards to govern
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whether the predominant motivation underlying the
entire redistricting map was partisan. See 541 U. S., at
285. But see id., at 355 (BREYER, J., dissenting) (arguing
that there are judicially manageable standards to assess
statewide districting challenges even when a plan is en
acted in response to a legal obligation to redistrict).
Unlike Vieth, the narrow question presented by the
statewide challenge in this litigation is whether the
State’s decision to draw the map in the first place, when it
was under no legal obligation to do so, was permissible. It
is undeniable that identifying the motive for making that
basic decision is a readily manageable judicial task. See
Gomillion v. Lightfoot, 364 U. S. 339, 341 (1960) (noting
that plaintiffs’ allegations, if true, would establish by
circumstantial evidence “tantamount for all practical
purposes to a mathematical demonstration,” that redis
tricting legislation had been enacted “solely” to segregate
voters along racial lines); cf. Personnel Administrator of
Mass. v. Feeney, 442 U. S. 256, 276–280 (1979) (analyzing
whether the purpose of a law was to discriminate against
women). Indeed, although the Constitution places no per
se ban on midcycle redistricting, a legislature’s decision to
redistrict in the middle of the census cycle, when the
legislature is under no legal obligation to do so, makes the
judicial task of identifying the legislature’s motive simpler
than it would otherwise be. As JUSTICE BREYER has
pointed out, “the presence of midcycle redistricting, for
any reason, raises a fair inference that partisan machina
tions played a major role in the map-drawing process.”
Vieth, 541 U. S., at 367 (dissenting opinion).
The conclusion that courts can easily identify the motive
for redistricting when the legislature is under no legal
obligation to act is reinforced by the record in this very
case. The District Court unambiguously identified the
sole purpose behind the decision to promulgate Plan
1374C: a desire to maximize partisan advantage. See
 Cite as: 548 U. S. ____ (2006) 13

Opinion of STEVENS, J.

Session, 298 F. Supp. 2d, at 472 (“It was clear from the
evidence” that Republicans “ ‘decided to redraw the state’s
congressional districts solely for the purpose of seizing
between five and seven seats from Democratic incum
bents’ ” (quoting amicus brief filed in Vieth v. Jubelirer);
298 F. Supp., at 470 (“There is little question but that the
single-minded purpose of the Texas Legislature in enact
ing Plan 1374C was to gain partisan advantage”). It does
not matter whether the District Court’s description of that
purpose qualifies as a specific finding of fact because it is
perfectly clear that there is more than ample evidence in
the record to support such a finding. This evidence in
cludes: (1) testimony from state legislators; (2) the proce
dural irregularities described above that accompanied the
adoption of Plan 1374C, including the targeted abolition of
the longstanding two-thirds rule, designed to protect the
rights of the minority party, in the Texas Senate; (3) Plan
1374C’s significant departures from the neutral districting
criteria of compactness and respect for county lines; (4) the
plan’s excessive deviations from prior districts, which
interfere with the development of strong relationships
between Members of Congress and their constituents; and
(5) the plan’s failure to comply with the Voting Rights Act.
Indeed, the State itself conceded that “[t]he overwhelming
evidence demonstrated that partisan gain was the moti
vating force behind the decision to redistrict in 2003.”
State Post-Trial Brief 51. In my judgment, there is not
even a colorable basis for contending that the relevant
intent—in this case a purely partisan intent3—cannot be
——————
3 The State suggests that in the process of drawing districts the archi

tects of Plan 1374C frequently followed county lines, made an effort to
keep certain entire communities within a given district and otherwise
followed certain neutral principles. But these facts are not relevant to
the narrow question presented by these cases: Neutral motivations in
the implementation of particular features of the redistricting do not
qualify the solely partisan motivation behind the basic decision to adopt
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identified on the basis of admissible evidence in the
record.4
Of course, the conclusions that courts are fully capable
of analyzing the intent behind a decision to redistrict, and
that desire for partisan gain was the sole factor motivating
the decision to redistrict at issue here, do not resolve the
question whether proof of a single-minded partisan intent
is sufficient to establish a constitutional violation.
On the merits of that question, the State seems to as
sume that our decision in Upham v. Seamon, 456 U. S. 37
(1982) (per curiam), has already established the legisla
ture’s right to replace a court-ordered plan with a plan
drawn for purely partisan purposes. JUSTICE KENNEDY
ultimately indulges in a similar assumption, relying on
Upham for the proposition that “our decisions have as
sumed that state legislatures are free to replace court-
mandated remedial plans by enacting redistricting plans
of their own.” Ante, at 9. JUSTICE KENNEDY recognizes
that “[j]udicial respect for legislative plans, however,
cannot justify legislative reliance on improper criteria for
districting determinations.” Ibid. But JUSTICE KENNEDY
then incorrectly concludes that the singular intent to

——————
an entirely unnecessary plan in the first place.
4 As noted above, rather than identifying any arguably neutral rea

sons for adopting Plan 1374C, the record establishes a purely partisan
single-minded motivation with unmistakable clarity. Therefore, there
is no need at this point to discuss standards that would guide judges in
enforcing a rule allowing legislatures to be motivated in part by parti
san considerations, but which would impose an “obligation not to apply
too much partisanship in districting.” Vieth v. Jubelirer, 541 U. S. 267,
286 (2004) (plurality opinion). Deciding that 100% is “too much” is not
only a manageable decision, but, as explained below, it is also an
obviously correct one. Nonetheless, it is worth emphasizing that courts
do, in fact, possess the tools to employ standards that permit legisla
tures to consider partisanship in the redistricting process, but which do
not allow legislatures to use partisanship as the predominant motiva
tion for their actions. See Part IV, infra.
 Cite as: 548 U. S. ____ (2006) 15

Opinion of STEVENS, J.

maximize partisan advantage is not, in itself, such an
improper criterion. Ante, at 11.
This reliance on Upham overlooks critical distinctions
between the redistricting plan the District Court drew in
Upham and the redistricting plan the District Court drew
in Balderas. The judicial plan in Upham was created to
provide an interim response to an objection by the Attor
ney General that two contiguous districts in a plan origi
nally drafted by the Texas Legislature violated §5 of the
Voting Rights Act. We concluded that, in fashioning its
interim remedy, the District Court had erroneously “sub
stituted its own reapportionment preferences for those of
the state legislature.” 456 U. S., at 40. We held that
when judicial relief was necessary because a state legisla
ture had failed “ ‘to reapportion according to federal consti
tutional [or statutory] requisites in a timely fashion after
having had an adequate opportunity to do so,’ ” the federal
court should, as much as possible “ ‘follow the policies and
preferences of the State,’ ” in creating a new map. Id., at
41 (quoting White v. Weiser, 412 U. S. 783, 794–795
(1973)). We did not suggest that federal courts should
honor partisan concerns, but rather identified the relevant
state policies as those “ ‘expressed in statutory and consti
tutional provisions or in the reapportionment plans pro
posed by the state legislature, whenever adherence to
state policy does not detract from the requirements of the
Federal Constitution.’ ” Upham, 456 U. S., at 41 (quoting
White, 412 U. S., at 794–795). Because the District Court
in Upham had exceeded its authority in drawing a new
districting map, we made clear that the legislature was
authorized to remedy the §5 violation with a map of its
own choosing. See 456 U. S., at 44. Upham, then, stands
only for the proposition that a state legislature is author
ized to redraw a court-drawn congressional districting
map when a district court has exceeded its remedial au
thority. Upham does not stand for the proposition that,
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after a State embraces a valid, neutral court-drawn plan
by asking this Court to affirm the opinion creating that
plan, the State may then redistrict for the sole purpose of
disadvantaging a minority political party.
Indeed, to conclude otherwise would reflect a fundamen
tal misunderstanding of the reason why we have held that
state legislatures, rather than federal courts, should have
the primary task of creating apportionment plans that
comport with federal law. We have so held because “a
state legislature is the institution that is by far the best
situated to identify and then reconcile traditional state
policies” with the requirements of federal law, Finch, 431
U. S., at 414–415, not because we wish to supply a domi
nant party with an opportunity to disadvantage its politi
cal opponents. Indeed, a straightforward application of
settled constitutional law leads to the inescapable conclu
sion that the State may not decide to redistrict if its sole
motivation is “to minimize or cancel out the voting
strength of racial or political elements of the voting popu
lation,” Fortson, 379 U. S., at 439 (emphasis added).
The requirements of the Federal Constitution that limit
the State’s power to rely exclusively on partisan prefer
ences in drawing district lines are the Fourteenth
Amendment’s prohibition against invidious discrimina
tion, and the First Amendment’s protection of citizens
from official retaliation based on their political affiliation.
The equal protection component of the Fourteenth
Amendment requires actions taken by the sovereign to be
supported by some legitimate interest, and further estab
lishes that a bare desire to harm a politically disfavored
group is not a legitimate interest. See, e.g., Cleburne v.
Cleburne Living Center, Inc., 473 U. S. 432, 447 (1985).
Similarly, the freedom of political belief and association
guaranteed by the First Amendment prevents the State,
absent a compelling interest, from “penalizing citizens
because of their participation in the electoral process, . . .
 Cite as: 548 U. S. ____ (2006) 17

Opinion of STEVENS, J.

their association with a political party, or their expression
of political views.” Vieth, 541 U. S., at 314 (KENNEDY, J.,
concurring in judgment) (citing Elrod v. Burns, 427 U. S.
347 (1976) (plurality opinion)). These protections embod
ied in the First and Fourteenth Amendments reflect the
fundamental duty of the sovereign to govern impartially.
E.g., Lehr v. Robertson, 463 U. S. 248, 265 (1983); New
York City Transit Authority v. Beazer, 440 U. S. 568
(1979).
The legislature’s decision to redistrict at issue in this
litigation was entirely inconsistent with these principles.
By taking an action for the sole purpose of advantaging
Republicans and disadvantaging Democrats, the State of
Texas violated its constitutional obligation to govern
impartially. “If a State passed an enactment that declared
‘All future apportionment shall be drawn so as most to
burden Party X’s rights to fair and effective representa
tion, though still in accord with one-person, one-vote
principles,’ we would surely conclude the Constitution had
been violated.” Vieth, 541 U. S., at 312 (KENNEDY, J.,
concurring in judgment).
III
Relying solely on Vieth, JUSTICE KENNEDY maintains
that even if legislation is enacted based solely on a desire
to harm a politically unpopular minority, this fact is insuf
ficient to establish unconstitutional partisan gerryman
dering absent proof that the legislation did in fact burden
“the complainants’ representative rights.” Ante, at 11.
This conclusion—which clearly goes to the merits, rather
than the manageability, of a partisan gerrymandering
claim—is not only inconsistent with the constitutional
requirement that state action must be supported by a
legitimate interest, but also provides an insufficient re
sponse to appellants’ claim on the merits.
JUSTICE KENNEDY argues that adopting “the modified
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sole-intent test” could “encourage partisan excess at the
outset of the decade, when a legislature redistricts pursu
ant to its decennial constitutional duty and is then im
mune from the charge of sole-motivation.” Ante, at 12–13.
But this would be a problem of the Court’s own making.
As the decision in Cox v. Larios, 542 U. S. 947, demon
strates, there are, in fact, readily manageable judicial
standards that would allow injured parties to challenge
excessive (and unconstitutional) partisan gerrymandering
undertaken in response to the release of the decennial
census data.5 See also Vieth, 541 U. S., at 328–339
(STEVENS, J., dissenting); id., at 347–353 (SOUTER, J.,
joined by GINSBURG, J., dissenting); id., at 365–367
(BREYER, J., dissenting). JUSTICE KENNEDY’s concern
about a heightened incentive to engage in such excessive
partisan gerrymandering would be avoided if the Court
were willing to enforce those standards.
In any event, JUSTICE KENNEDY’s additional require
ment that there be proof that the gerrymander did in fact
burden the complainants’ representative rights is clearly
satisfied by the record in this litigation. Indeed, the
——————
5 See Larios v. Cox, 300 F. Supp. 2d 1320, 1342–1353 (ND Ga. 2004)

(per curiam). In Cox, the three-judge District Court undertook a
searching review of the entire record in concluding that the population
deviations in the state legislative districts created for the Georgia
House and Senate after the release of the 2000 census data were not
driven by any traditional redistricting criteria, such as compactness or
preserving county lines, but were instead driven by the impermissible
factors of regional favoritism and the discriminatory protection of
Democratic incumbents. If there were no judicially manageable stan
dards to assess whether a State’s adoption of a redistricting map was
based on valid governmental objectives, we would not have summarily
affirmed the decision in Cox over the dissent of only one Justice. See
542 U. S. 947; id., at 951 (SCALIA, J., dissenting). In addition, as Part
III of the Court’s opinion and this Part of my opinion demonstrate,
assessing whether a redistricting map has a discriminatory impact on
the opportunities for voters and candidates of a particular party to
influence the political process is a manageable judicial task.
 Cite as: 548 U. S. ____ (2006) 19

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Court’s accurate exposition of the reasons why the changes
to District 23 diluted the voting rights of Latinos who
remain in that district simultaneously explains why those
changes also disadvantaged Democratic voters and thus
demonstrates that the effects of a political gerrymander
can be evaluated pursuant to judicially manageable
standards.
In my judgment the record amply supports the conclu
sion that Plan 1374C not only burdens the minority party
in District 23, but also imposes a severe statewide burden
on the ability of Democratic voters and politicians to influ
ence the political process.6
In arguing that Plan 1374C does not impose an uncon
stitutional burden on Democratic voters and candidates,
the State takes the position that the plan has resulted in
an equitable distribution of political power between the
State’s two principal political parties. The State empha
sizes that in the 2004 elections—held pursuant to Plan
1374C—Republicans won 21 of 32, or 66%, of the congres
sional seats. That same year, Republicans carried 58% of
the vote in statewide elections. Admittedly, these num
bers do suggest that the State’s congressional delegation
was “roughly proportional” to the parties’ share of the
statewide vote, Brief for State Appellees 44, particularly in
light of the fact that our electoral system tends to produce
a “seat bonus” in which a party that wins a majority of the
vote generally wins an even larger majority of the seats,
see Brief for Alan Heslop et al. as Amici Curiae (describing
the seat bonus phenomenon). Cf. ante, at 12 (opinion of
KENNEDY, J.) (arguing that, compared to the redistricting
plan challenged in Vieth, “Plan 1374C can be seen as
——————
6 Although the burdened group at issue in this litigation consists of

Democratic voters and candidates, the partisan gerrymandering
analysis throughout this opinion would be equally applicable to any
“politically coherent group whose members engaged in bloc voting.”
Vieth, 541 U. S., at 347 (SOUTER, J., joined by GINSBURG, J., dissenting).
20 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

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making the party balance more congruent to statewide
party power”).
That Plan 1374C produced a “roughly proportional”
congressional delegation in 2004 does not, however, an
swer the question whether the plan has a discriminatory
effect against Democrats. As appellants point out,
whether a districting map is biased against a political
party depends upon the bias in the map itself—in other
words, it depends upon the opportunities that the map
offers each party, regardless of how candidates perform in
a given year. And, as the State’s expert found in this
litigation, Plan 1374C clearly has a discriminatory effect
in terms of the opportunities it offers the two principal
political parties in Texas. Indeed, that discriminatory
effect is severe.
According to Professor Gaddie, the State’s expert, Plan
1374C gives Republicans an advantage in 22 of 32 con
gressional seats. The plaintiffs’ expert, Professor Alford,
who had been cited favorably by the Balderas Court as
having applied a “neutral approach” to redistricting in
that litigation, App. to Juris. Statement 207a, agreed. He
added that, in his view, the only surprise from the 2004
elections was “how far things moved” toward achieving a
22-to-10 pro-Republican split “in a single election year,”
id., at 226a (declaration of John R. Alford, Ph.D.).7 But
this 22-to-10 advantage does not depend on Republicans
winning the 58% share of the statewide vote that they

——————
7 In the 2004 congressional elections, Republicans won 21 of the 22

seats that had been designed to favor Republicans in Plan 1374C. One
Democratic incumbent, Representative Chet Edwards, narrowly de
feated (with 51% of the vote) his nonincumbent Republican challenger
in a Republican-leaning district; Edwards outspent his challenger, who
lacked strong ties to the principal communities in the district. Republi
cans are likely to spend more money and find a stronger challenger in
2006, which will create a “very significant chance” of a Republican
defeating Edwards. App. to Juris. Statement 224a, 226a.
 Cite as: 548 U. S. ____ (2006) 21

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received in 2004. Instead, according to Professor Gaddie,
Republicans would be likely to carry 22 of 32 congressional
seats if they won only 52% of the statewide vote. App.
216, 229. Put differently, Plan 1374C ensures that, even if
the Democratic Party succeeds in convincing 10% of the
people who voted for Republicans in the last statewide
elections to vote for Democratic congressional candidates,8
which would constitute a major electoral shift, there is
unlikely to be any change in the number of congressional
seats that Democrats win. Moreover, Republicans would
still have an overwhelming advantage if Democrats
achieved full electoral parity. According to Professor
Gaddie’s analysis, Republicans would be likely to carry 20
of the 32 congressional seats even if they only won 50%
(or, for that matter, 49%) of the statewide vote. Id., at
216, 229–230. This demonstrates that Plan 1374C is
inconsistent with the symmetry standard, a measure
social scientists use to assess partisan bias, which is un
doubtedly “a reliable standard” for measuring a “bur
den . . . on the complainants’ representative rights,” ante,
at 11 (opinion of KENNEDY, J.).
The symmetry standard “requires that the electoral
system treat similarly-situated parties equally, so that
each receives the same fraction of legislative seats for a
particular vote percentage as the other party would re
ceive if it had received the same percentage.” Brief for
Gary King et al. as Amici Curiae 4–5. This standard is
widely accepted by scholars as providing a measure of
partisan fairness in electoral systems. See, e.g., Tufte,
The Relationship Between Seats and Votes in Two-Party
Systems, 67 Am. Pol. Sci. Rev. 540, 542–543 (1973); Gel

——————
8 If
10% of Republican voters decided to vote for Democratic candidates,
and if there were no other changes in voter turnout or preferences, the
Republicans’ share of the statewide vote would be reduced from 58% to
52%.
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man & King, Enhancing Democracy Through Legislative
Redistricting, 88 Am. Pol. Sci. Rev. 541, 545 (1994);
Thompson, Election Time: Normative Implications of
Temporal Properties of the Electoral Process in the United
States, 98 Am. Pol. Sci. Rev. 51, 53, and n. 7 (2004); Eng
strom & Kernell, Manufactured Responsiveness: The
Impact of State Electoral Laws on Unified Party Control of
the Presidency and House of Representatives, 1840–1940,
49 Am. J. Pol. Sci. 531, 541 (2005). Like other models that
experts use in analyzing vote dilution claims, compliance
with the symmetry standard is measured by extrapolating
from a sample of known data, see, e.g., Thornburg v.
Gingles, 478 U. S. 30, 53 and n. 20 (1986) (discussing ex
treme case analysis and bivariate ecological regression
analysis). In this litigation, the symmetry standard was
not simply proposed by an amicus to this Court, it was
also used by the expert for plaintiffs and the expert for the
State in assessing the degree of partisan bias in Plans
1151C and 1374C. See App. 34–42 (report of Professor
Alford); id., at 189–193, 216 (report of Professor Gaddie).
Because, as noted above, Republicans would have an
advantage in a significant majority of seats even if the
statewide vote were equally distributed between Republi
cans and Democrats, Plan 1374C constitutes a significant
departure from the symmetry standard. By contrast,
based on Professor Gaddie’s evaluation, the Balderas Plan,
though slightly biased in favor of Republicans, provided
markedly more equitable opportunities to Republicans and
Democrats. For example, consistent with the symmetry
standard, under Plan 1151C the parties were likely to
each take 16 congressional seats if they won 50% of the
statewide vote. See App. 216.
Plan 1374C then, clearly has a discriminatory impact on
the opportunities that Democratic citizens have to elect
candidates of their choice. Moreover, this discriminatory
effect cannot be dismissed as de minimis. According to the
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State’s expert, if each party receives half the statewide
vote, under Plan 1374C the Republicans would carry
62.5% (20) of the congressional seats, whereas the Democ
rats would win 37.5% (12) of those seats. In other words,
at the vote distribution point where a politically neutral
map would result in zero differential in the percentage of
seats captured by each party, Plan 1374C is structured to
create a 25% differential. When a redistricting map im
poses such a significant disadvantage on a politically
salient group of voters, the State should shoulder the
burden of defending the map. Cf. Brown v. Thomson, 462
U. S. 835, 842–843 (1983) (holding that the implementa
tion of a redistricting plan for state legislative districts
with population deviations over 10% creates a prima facie
case of discrimination under the Equal Protection Clause,
thus shifting the burden to the State to defend the plan);
Larios v. Cox, 300 F. Supp. 2d 1320, 1339–1340 (ND Ga.)
(per curiam), summarily aff’d, 542 U. S. 947 (2004) (same,
but further pointing out that the “ ‘ten percent rule’ ” is not
a safe harbor, and concluding that, under the circum
stances of the case before it, a state legislative districting
plan was unconstitutional even though population devia
tions were under 10%). At the very least, once plaintiffs
have established that the legislature’s sole purpose in
adopting a plan was partisan—as plaintiffs have estab
lished in this action, see Part II, supra—such a severe
discriminatory effect should be sufficient to meet any
additional burden they have to demonstrate that
the redistricting map accomplishes its discriminatory
purpose.9
——————
9 JUSTICE KENNEDY faults proponents of the symmetry standard for

not “providing a standard for deciding how much partisan bias is too
much,” ante, at 13. But it is this Court, not proponents of the symme
try standard, that has the judicial obligation to answer the question of
how much unfairness is too much. It would, of course, be an eminently
manageable standard for the Court to conclude that deviations of over
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The bias in Plan 1374C is most striking with regard to
its effect on the ability of Democratic voters to elect candi
dates of their choice, but its discriminatory effect does not
end there. Plan 1374C also lessens the influence Democ
ratic voters are likely to be able to exert over Republican
lawmakers, thus further minimizing Democrats’ capacity
to play a meaningful role in the political process.
Even though it “defies political reality to suppose that
members of a losing party have as much political influence
over . . . government as do members of the victorious
party,” Davis v. Bandemer, 478 U. S. 109, 170 (1986)
(Powell, J., concurring in part and dissenting in part), the
Court has recognized that “the power to influence the
political process is not limited to winning elections,” id., at
132 (plurality opinion); see also Georgia v. Ashcroft, 539
U. S. 461, 482 (2003). In assessing whether members of a
group whose candidate is defeated at the polls can none
theless influence the elected representative, it is “impor
tant to consider ‘the likelihood that candidates elected
without decisive minority support would be willing to take
the minority’s interests into account.’ ” Id., at 482 (quoting
Gingles, 478 U. S., at 100 (O’Connor, J., concurring in
judgment)). One justification for majority rule is that
elected officials will generally “take the minority’s inter
ests into account,” in part because the majority recognizes
——————
10% from symmetry create a prima facie case of an unconstitutional
gerrymander, just as population deviations among districts of more
than 10% create such a prima facie case. Or, the Court could conclude
that a significant departure from symmetry is one relevant factor in
analyzing whether, under the totality of the circumstances, a district
ing plan is an unconstitutional partisan gerrymander. See n. 11, infra.
At any rate, proponents of the symmetry standard have provided a
helpful (though certainly not talismanic) tool in this type of litigation.
While I appreciate JUSTICE KENNEDY’s leaving the door open to the use
of the standard in future cases, see ante, at 13, I believe it is the role of
this Court, not social scientists, to determine how much partisan
dominance is too much.
 Cite as: 548 U. S. ____ (2006) 25

Opinion of STEVENS, J.

that preferences shift and today’s minority could be tomor
row’s majority. See, e.g., L. Guinier, Tyranny of the Ma
jority 77 (1994); J. Ely, Democracy and Distrust 84 (1980);
cf. Letter from James Madison to Thomas Jefferson, (Oct.
24, 1787), reprinted in Republic of Letters 502 (J. Smith
ed. 1995) (arguing that “[t]he great desideratum in Gov
ernment is . . . to modify the sovereignty as that it may be
sufficiently neutral between different parts of the Society”
and thus prevent a fixed majority from oppressing the
minority). Indeed, this Court has concluded that our
system of representative democracy is premised on the
assumption that elected officials will seek to represent
their constituency as a whole, rather than any dominant
faction within that constituency. See Shaw v. Reno, 509
U. S. 630, 648 (1993).
Plan 1374C undermines this crucial assumption that
congressional representatives from the majority party (in
this case Republicans) will seek to represent their entire
constituency. “When a district obviously is created solely
to effectuate the perceived common interests of one racial
group, elected officials are more likely to believe that their
primary obligation is to represent only the members of
that group, rather than their constituency as a whole.”
Ibid. Shaw’s analysis of representational harms in the
racial gerrymandering context applies with at least as
much force in the partisan gerrymandering context be
cause, in addition to the possibility that a representative
may believe her job is only to represent the interests of a
dominant constituency, a representative may feel more
beholden to the cartographers who drew her district than
to the constituents who live there. See Vieth, 541 U. S., at
329–331 (STEVENS, J., dissenting). In short, Plan 1374C
reduces the likelihood that Republican representatives
elected from gerrymandered districts will act as vigorous
advocates for the needs and interests of Democrats who
reside within their districts.
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In addition, Plan 1374C further weakens the incentives
for members of the majority party to take the interests of
the minority party into account, because it locks in a
Republican congressional majority of 20–22 seats, so long
as Republicans achieve at least 49% of the vote. The
result of this lock-in is that, according to the State’s ex
pert, between 19 and 22 of these Republican seats are safe
seats, meaning seats where one party has at least a 10%
advantage over the other. See App. 227–228 (expert re
port of Professor Gaddie). Members of Congress elected
from such safe districts need not worry much about the
possibility of shifting majorities, so they have little reason
to be responsive to political minorities within their
district.10
——————
10 Safe seats may harm the democratic process in other ways as well.
According to one recent article co-authored by a former Chairman of the
Federal Election Commission, electoral competition “plainly has a
positive effect on the interest and participation of voters in the electoral
process.” Potter & Viray, Election Reform: Barriers to Participation, 36
U. Mich. J. L. Reform 547, 575 (2003) (hereinafter Potter & Viray); see
also L. Guinier, Tyranny of the Majority 85 (1994). The impact of
noncompetitive elections in depressing voter turnout is especially
troubling in light of the fact that voter participation in the United
States lags behind, often well behind, participation rates in other
democratic nations. Potter & Viray 575–576, and n. 200. In addition,
the creation of safe seats tends to polarize decisionmaking bodies. See,
e.g., Clingman v. Beaver, 544 U. S. 581, 620 (2005) (STEVENS, J., joined by
GINSBURG, J., dissenting) (noting that safe districts can “increase the
bitter partisanship that has already poisoned some of those [legislative]
bodies that once provided inspiring examples of courteous adversary
debate and deliberation”); Cox, Partisan Gerrymandering and Disaggre
gated Redistricting, 2004 S. Ct. Rev. 409, 430 (arguing that “safe seats
produce more polarized representatives because, by definition, the
median voter in a district that is closely divided between the two major
parties is more centrist than the median voter in a district dominated
by one party”); Raviv, Unsafe Harbors: One Person, One Vote and
Partisan Redistricting, 7 U. Pa. J. Const. L. 1001, 1068 (2005) (arguing
that safe districts encourage polarization in decisionmaking bodies
because representatives from those districts have to cater only to voters
 Cite as: 548 U. S. ____ (2006) 27

Opinion of STEVENS, J.

In sum, I think it is clear that Plan 1374C has a severe
burden on the capacity of Texas Democrats to influence
the political process. Far from representing an example of
“one of the most significant acts a State can perform to
ensure citizen participation in republican self-
governance,” ante, at 9 (opinion of KENNEDY, J.), the plan
guarantees that the Republican-dominated membership of
the Texas congressional delegation will remain constant
notwithstanding significant pro-Democratic shifts in
public opinion. Moreover, the harms Plan 1374C imposes
on Democrats are not “hypothetical” or “counterfactual,”
id., at 13, simply because, in the 2004 elections, Republi
cans won a share of seats roughly proportional to their
statewide voting strength. By creating 19–22 safe Repub
lican seats, Plan 1374C has already harmed Democrats
because, as explained above, it significantly undermines
the likelihood that Republican lawmakers from those
districts will be responsive to the interests of their Democ
ratic constituents. In addition, Democrats will surely have
a more difficult time recruiting strong candidates, and
mobilizing voters and resources, in these safe Republican
districts. Thus, appellants have satisfied any requisite
obligation to demonstrate that they have been harmed by
the adoption of Plan 1374C.
Furthermore, as discussed in Part II, supra, the sole
intent motivating the Texas Legislature’s decision to
replace Plan 1151C with Plan 1374C was to benefit Re
publicans and burden Democrats. Accordingly, in terms of
both its intent and effect, Plan 1374C violates the sover
eign’s duty to govern impartially.

——————
from one party). See generally Issacharoff & Karlan, Where to Draw
the Line? 153 U. Pa. L. Rev. 541, 574 (providing data about the large
percentage of safe seats in recent congressional and state legislative
elections, and concluding that “[n]oncompetitive elections threaten both
the legitimacy and the vitality of democratic governance”).
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“When a State adopts rules governing its election ma
chinery or defining electoral boundaries, those rules
must serve the interests of the entire community. If
they serve no purpose other than to favor one seg
ment—whether racial, ethnic, religious, or political—
that may occupy a position of strength at a particular
point in time, or to disadvantage a politically weak
segment of the community, they violate the constitu
tional guarantee of equal protection.” Karcher,
462 U. S., at 748 (STEVENS, J., concurring) (citation
omitted).
Accordingly, even accepting the Court’s view that a ger
rymander is tolerable unless it in fact burdens the minor
ity’s representative rights, I would hold that Plan 1374C is
unconstitutional.11
IV
Even if I thought that Plan 1374C were not unconstitu
tional in its entirety, I would hold that the cracking of
District 24—which, under the Balderas Plan, was a major
ity-minority district that consistently elected Democratic
Congressman Martin Frost—was unconstitutional. Read
——————
11 In this litigation expert testimony provided the principal evidence

about the effects of the plan that satisfy the test JUSTICE KENNEDY
would impose. In my judgment, however, most statewide challenges to
an alleged gerrymander should be evaluated primarily by examining
these objective factors: (1) the number of people who have been moved
from one district to another, (2) the number of districts that are less
compact than their predecessors, (3) the degree to which the new plan
departs from other neutral districting criteria, including respect for
communities of interest and compliance with the Voting Rights Act, (4)
the number of districts that have been cracked in a manner that
weakens an opposition party incumbent, (5) the number of districts
that include two incumbents from the opposite party, (6) whether the
adoption of the plan gave the opposition party, and other groups, a fair
opportunity to have input in the redistricting process, (7) the number of
seats that are likely to be safe seats for the dominant party, and (8) the
size of the departure in the new plan from the symmetry standard.
 Cite as: 548 U. S. ____ (2006) 29

Opinion of STEVENS, J.

ily manageable standards enable us to analyze both the
purpose and the effect of the “granular” decisions that
produced the replacements for District 24. Applying these
standards, which I set forth below, I believe it is clear that
the manipulation of this district for purely partisan gain
violated the First and Fourteenth Amendments.
The same constitutional principles discussed above
concerning the sovereign’s duty to govern impartially
inform the proper analysis for claims that a particular
district is an unconstitutional partisan gerrymander. We
have on several occasions recognized that a multimember
district is subject to challenge under the Fourteenth
Amendment if it operates “ ‘to minimize or cancel out the
voting strength of racial or political elements of the voting
population.’ ” E.g., Gaffney v. Cummings, 412 U. S. 735,
751 (1973) (emphasis added); Burns v. Richardson, 384
U. S. 73, 88 (1966). There is no constitutionally relevant
distinction between the harms inflicted by single-member
district gerrymanders that minimize or cancel out the
voting strength of a political element of the population and
the same harms inflicted by multimember districts. In
both situations, the State has interfered with the voter’s
constitutional right to “engage in association for the ad
vancement of beliefs and ideas,” NAACP v. Alabama ex
rel. Patterson, 357 U. S. 449, 460 (1958).
I recognize that legislatures will always be aware of
politics and that we must tolerate some consideration of
political goals in the redistricting process. See Cousins v.
City Council of Chicago, 466 F. 2d 830, 847 (CA7 1972)
(Stevens, J., dissenting). However, I think it is equally
clear that, when a plaintiff can prove that a legislature’s
predominant motive in drawing a particular district was
to disadvantage a politically salient group, and that the
decision has the intended effect, the plaintiff’s constitu
tional rights have been violated. See id., at 859–860.
Indeed, in Vieth, five Members of this Court explicitly
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recognized that extreme partisan gerrymandering violates
the Constitution. See 541 U. S., at 307, 312–316
(KENNEDY, J., concurring in judgment); id., at 317–318
(STEVENS, J., dissenting); id., at 343, 347–352 (SOUTER, J.,
joined by GINSBURG, J., dissenting); id., at 356–357, 366–
367 (BREYER, J., dissenting). The other four Justices in
Vieth stated that they did not disagree with that conclu
sion. See id., at 292 (plurality opinion). The Vieth plural
ity nonetheless determined that there were no judicially
manageable standards to assess partisan gerrymandering
claims. Id., at 305–306. However, the following test,
which shares some features of the burden-shifting stan
dard for assessing unconstitutional partisan gerrymander
ing proposed by JUSTICE SOUTER’s opinion in Vieth, see
id., at 348–351, would provide a remedy for at least the
most blatant unconstitutional partisan gerrymanders and
would also be eminently manageable.
First, to have standing to challenge a district as an un
constitutional partisan gerrymander, a plaintiff would have
to prove that he is either a candidate or a voter who re
sided in a district that was changed by a new districting
plan. See id., at 327–328 (STEVENS, J., dissenting) (dis
cussing United States v. Hays, 515 U. S. 737 (1995)). See
also 541 U. S., at 347–348 (SOUTER, J., joined by GINSBURG,
J., dissenting) (citing Hays). A plaintiff with standing would
then be required to prove both improper purpose and effect.
With respect to the “purpose” portion of the inquiry, I
would apply the standard fashioned by the Court in its
racial gerrymandering cases. Under the Court’s racial
gerrymandering jurisprudence, judges must analyze
whether plaintiffs have proved that race was the predomi
nant factor motivating a districting decision such that
other, race-neutral districting principles were subordi
nated to racial considerations. If so, strict scrutiny ap
plies, see, e.g., Vera, 517 U. S., at 958–959 (plurality opin
ion), and the State must justify its districting decision by
 Cite as: 548 U. S. ____ (2006) 31

Opinion of STEVENS, J.

establishing that it was narrowly tailored to serve a com
pelling state interest, such as compliance with §2 of the
Voting Rights Act, see King v. Illinois Bd. of Elections, 979
F. Supp. 619 (ND Ill. 1997), aff’d, 522 U. S. 1087 (1998);
Vera, 517 U. S., at 994 (O’Connor, J., concurring).12 How
ever, strict scrutiny does not apply merely because race
was one motivating factor behind the drawing of a major
ity-minority district. Id., at 958–959 (plurality opinion);
see also Easley v. Cromartie, 532 U. S. 234, 241 (2001).
Applying these standards to the political gerrymandering
context, I would hold that, if a plaintiff carried her burden
of demonstrating that redistricters subordinated neutral
districting principles to political considerations and that
their predominant motive was to maximize one party’s
power, she would satisfy the intent prong of the constitu
tional inquiry.13 Cf. Vieth, 541 U. S., at 349–350 (SOUTER,
J., joined by GINSBURG, J., dissenting) (discussing the
importance of a district’s departures from traditional
districting principles in determining whether the district
is an unconstitutional gerrymander).
With respect to the effects inquiry, a plaintiff would be
required to demonstrate the following three facts: (1) her
candidate of choice won election under the old plan; (2) her
——————
12JUSTICE BREYER has authorized me to state that he agrees with
JUSTICE SCALIA that compliance with §5 of the Voting Rights Act is also
a compelling state interest. See post, at 9. I too agree with JUSTICE
SCALIA on this point.
13 If, on the other hand, the State could demonstrate, for example,

that the new district was part of a statewide scheme designed to
apportion power fairly among politically salient groups, or to enhance
the political power of an underrepresented community of interest (such
as residents of an economically distressed region), the State would
avoid liability even if the results of such statewide districting had
predictably partisan effects. See generally Vieth, 541 U. S., at 351–352
(SOUTER, J., joined by GINSBURG, J., dissenting) (discussing legitimate
interests that a State could posit as a defense to a prima facie case of
partisan gerrymandering).
32 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

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residence is now in a district that is a safe seat for the
opposite party; and (3) her new district is less compact
than the old district. The first two prongs of this effects
inquiry would be designed to measure whether or not the
plaintiff has been harmed, whereas the third prong would
be relevant because the shape of the gerrymander has
always provided crucial evidence of its character, see
Karcher, 462 U. S., at 754–758, 762–763 (STEVENS, J.,
concurring); see also Vieth, 541 U. S., at 348 (SOUTER, J.,
joined by GINSBURG, J., dissenting) (noting that compact
ness is a traditional districting principle, which “can be
measured quantitatively”). Moreover, a safe harbor for
more compact districts would allow a newly elected major
ity to eliminate a prior partisan gerrymander without fear
of liability or even the need to devote resources to litigat
ing whether or not the legislature had acted with an im
permissible intent.
If a plaintiff with standing could meet the intent and
effects prong of the test outlined above, that plaintiff
would clearly have demonstrated a violation of her consti
tutional rights. Moreover, I do not think there can be any
colorable claim that this test would not be judicially man
ageable.
Applying this test to the facts of this case, I think plain
tiffs in new Districts 6, 24, 26, and 32—four of the districts
in Plan 1374C that replaced parts of Balderas District
24—can demonstrate that their constitutional rights were
violated by the cracking of Balderas District 24. First, I
assume that there are plaintiffs who reside in Districts 6,
24, 26, and 32, and whose homes were previously located
in Balderas District 24.14 Accordingly, I assume that there
——————
14 This assumption is justified based on counsel’s undisputed repre

sentations at oral argument. See Tr. Oral Arg. 35. However, if there
were any genuine dispute about whether there are plaintiffs whose
residences were previously located in Balderas District 24, but which
are now incorporated into Districts 6, 24, 26, and 32, a remand would
 Cite as: 548 U. S. ____ (2006) 33

Opinion of STEVENS, J.

are plaintiffs who have standing to challenge the creation
of these districts.
Second, plaintiffs could easily satisfy their burden of
proving predominant partisan purpose. Indeed, in this
litigation, the State has acknowledged that its predomi
nant motivation for cracking District 24 was to achieve
partisan gain. See State Post-Trial Brief 51–52 (noting
that, in spite of concerns that the cracking of District 24
could lead to Voting Rights Act liability, “[t]he Legislature
. . . chose to pursue a political goal of unseating Con
gressman Frost instead of following a course that might
have lowered risks [of such liability]”).
The District Court agreed with the State’s analysis on
this issue. In the District Court, plaintiffs claimed that
the creation of District 26 violated the Equal Protection
Clause because the decision to create District 26 was
motivated by unconstitutional racial discrimination
against black voters. The District Court rejected this
argument, concluding that the State’s decision to crack
Balderas District 24 was driven not by racial prejudice,
but rather by the political desire to maximize Republican
advantage and to “remove Congressman Frost,” which
required that Frost “lose a large portion of his Democratic
constituency, many of whom lived in a predominately
Black area of Tarrant County.” Session, 298 F. Supp. 2d,
at 471.
That an impermissible, predominantly partisan, pur
pose motivated the cracking of former District 24 is fur
ther demonstrated by the fact that, in my judgment, this
cracking caused Plan 1374C to violate §5 of the Voting
Rights Act, 42 U. S. C. §1973c. The State’s willingness to
adopt a plan that violated its legal obligations under the
Voting Rights Act, combined with the other indicia of
partisan intent in this litigation, is compelling evidence
——————

be appropriate to allow the District Court to address this issue.

34 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

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that politics was not simply one factor in the cracking of
District 24, but rather that it was an impermissible, pre
dominant factor.
Section 5 of the Voting Rights Act “was intended ‘to
insure that that [the gains thus far achieved in minority
political participation] shall not be destroyed through new
[discriminatory] procedures and techniques.’ ” Beer v.
United States, 425 U. S. 130, 140–141 (1976) (quoting
S. Rep. No. 94–295, p. 19 (1975) (alteration in Beer)). To
effectuate this goal, §5 prevents covered jurisdictions, such
as Texas, from making changes to their voting procedures
“that would lead to a retrogression in the position of racial
minorities with respect to their effective exercise of the
electoral franchise.” Georgia, 539 U. S., at 477 (internal
quotation marks and citations omitted). In other words,
during the redistricting process, covered jurisdictions may
not “leave minority voters with less chance to be effective in
electing preferred candidates than they were” under the
prior districting plan. See id., at 494 (SOUTER, J., dissent
ing). By cracking Balderas District 24, and by not offsetting
the loss in black voters’ ability to elect preferred candi
dates elsewhere, Plan 1374C resulted in impermissible
retrogression.
Under the Balderas Plan, black Americans constituted a
majority of Democratic primary voters in District 24.
According to the unanimous report authored by staff
attorneys in the Voting Section of the Department of
Justice, black voters in District 24 generally voted cohe
sively, and thus had the ability to elect their candidate of
choice in the Democratic primary. Section 5 Recommen
dation Memorandum 33 (Dec. 12, 2003), available at
http://www.washingtonpost.com/wp-srv/nation/documents/
texasDOJmemo.pdf (all Internet materials as visited June
21, 2006, and available in Clerk of Court’s case file).
Moreover, the black community’s candidates of choice
could consistently attract sufficient crossover voting from
 Cite as: 548 U. S. ____ (2006) 35

Opinion of STEVENS, J.

nonblacks to win the general election, even though blacks
did not constitute a majority of voters in the general elec
tion. Id., at 33–34. Representative Frost, who is white,
was clearly the candidate of choice of the black community
in District 24, based on election returns, testimony of
community leaders, and “scorecards” he received from
groups dedicated to advancing the interests of African-
Americans. See id., at 35.
As noted above, in Plan 1374C, “the minority commu
nity in [Balderas District] 24 [was] splintered and sub
merged into majority Anglo districts in the Dallas-Fort
Worth area.” Id., at 67. By dismantling one district where
blacks had the ability to elect candidates of their choice,15
and by not offsetting this loss of a district with another
district where black voters had a similar opportunity, Plan
1374C was retrogressive, in violation of §5 of the Voting
Rights Act. See id., at 31, 67–69.
Notwithstanding the unanimous opinion of the staff
attorneys in the Voting Section of the Justice Department
that Plan 1374C was retrogressive and that the Attorney
General should have interposed an objection, the Attorney
General elected to preclear the map, thus allowing it to
——————
15 In the decision below, the District Court concluded that black vot

ers did not in fact “control” electoral outcomes in District 24. See
Session v. Perry, 298 F. Supp. 2d 451, 498 (2004). Even assuming, as
JUSTICE KENNEDY concludes, see ante, at 34, that the District Court did
not commit reversible error in its analysis of this issue, the lack of
“control” might be relevant in analyzing plaintiffs’ vote dilution claim
under §2, but it is not relevant in evaluating whether Plan 1374C is
retrogressive under §5. It is indisputable that, at the very least,
Balderas District 24 was a strong influence district for black voters,
that is, a district where voters of color can “play a substantial, if not
decisive, role in the electoral process.” Georgia v. Ashcroft, 539 U. S.
461, 482 (2003). Accordingly, by dismantling Balderas District 24, and
by failing to create a strong influence district elsewhere, Plan 1374C
was retrogressive. See 539 U. S., at 482 (explaining that, in deciding
whether a plan is retrogressive, “a court must examine whether a new
plan adds or subtracts ‘influence districts’ ”).
36 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

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take effect. We have held that, under the statutory
scheme, voters may not directly challenge the Attorney
General’s decision to preclear a redistricting plan, see
Morris v. Gressette, 432 U. S. 491 (1977), which means that
the Attorney General’s vigilant enforcement of the Act is
critical, and which also means that plaintiffs could not
bring a §5 challenge as part of this litigation.16 However,
judges are frequently called upon to consider whether a
redistricting plan violates §5, because a covered jurisdic
tion has the option of seeking to achieve preclearance by
either submitting its plan to the Attorney General or filing
a declaratory judgment action in the District Court for the
District of Columbia, whose judgment is subject to review
by this Court, see, e.g., Georgia, 539 U. S. 461. Accord
ingly, we have the tools to analyze whether a redistricting
plan is retrogressive.
Even though the §5 issue is not directly before this
Court, for the reasons stated above, I believe that the
cracking of District 24 caused Plan 1374C to be retrogres
sive. And the fact that the legislature promulgated a retro
gressive plan is relevant, because it provides additional
evidence that the legislature acted with a predominantly
partisan purpose. Complying with §5 is a neutral districting
principle, and the legislature’s promulgation of a retrogres
sive redistricting plan buttresses my conclusion that the
“legislature subordinated traditional [politically-]neutral
districting principles . . . to [political] considerations.” Miller
——————
16 As JUSTICE KENNEDY explains, see ante, at 33–36, plaintiffs did,

however, challenge District 24 under §2. I am in substantial agreement
with JUSTICE SOUTER’s discussion of this issue. See post, at 3–8.
Specifically, I agree with JUSTICE SOUTER that the “50% rule,” which
finds no support in the text, history, or purposes of §2, is not a proper
part of the statutory vote dilution inquiry. For the reasons stated in
my analysis of the “unique question of law . . . raised in this appeal,”
supra at 11, and in this part of my opinion, however, it is so clear that
the cracking of District 24 created an unconstitutional gerrymander
that I find it unnecessary to address the statutory issue separately.
 Cite as: 548 U. S. ____ (2006) 37

Opinion of STEVENS, J.

v. Johnson, 515 U. S. 900, 916 (1995). This evidence is
particularly compelling in light of the State’s acknowledg
ment that “[t]he Legislature . . . chose to pursue a political
goal of unseating Congressman Frost instead of following a
course that might have lowered risks in the preclearance
process.” State Post-Trial Brief 52 (citing, inter alia, trial
testimony of state legislators).
In sum, the record in this litigation makes clear that the
predominant motive underlying the fragmentation of
Balderas District 24 was to maximize Republicans’ elec
toral opportunities and ensure that Congressman Frost
was defeated.
Turning now to the effects test I have proposed, plain
tiffs in new Districts 6, 24, 36, and 32 could easily meet
the three parts of that test because: (1) under the Balderas
plan, they lived in District 24 and their candidate of choice
(Frost) was the winning candidate; (2) under Plan 1374C,
they have been placed in districts that are safe seats for
the Republican party, see App. 106 (showing that the
Democratic share of the two-party vote in statewide elec
tions from 1996 to 2002 was 40% or less in Districts 6, 24,
26, and 32); and (3) their new districts are less compact
than Balderas District 24, see App. 319–320 (compactness
scores for districts under the Balderas Plan and Plan
1374C).17
JUSTICE KENNEDY rejects my proposed effects test, as
applied in this case, because, in his view Balderas District
24 lacks “any special claim to fairness,” ante, at 36. But
my analysis in no way depends on the proposition that
Balderas District 24 was fair. The district was more
——————
17 Because new District 12, another district that covers portions of

former District 24, is more compact than Balderas District 24, voters in
new District 12 who previously resided in Balderas District 24 would
not be able to bring a successful partisan gerrymandering claim under
my proposed test, even though new District 12 is also a safe Republican
district. See App. 106, 319–320.
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compact than four of the districts that replaced it, and, as
explained above, compactness serves important values in
the districting process. This is why, in my view, a State
that creates more compact districts should enjoy a safe
harbor from partisan gerrymandering claims. However,
the mere fact that a prior district was unfair should surely
not provide a safe harbor for the creation of an even more
unfair district. Conversely, a State may of course create
less compact districts without violating the Constitution so
long as its purpose is not to disadvantage a politically
disfavored group. See supra, at 31–32 and n. 13. The
reason I focus on Balderas District 24 is not because the
district was fair, but because the prior district provides a
clear benchmark in analyzing whether plaintiffs have
been harmed.
In sum, applying the judicially manageable test set forth
in this Part of my opinion reveals that the cracking of
Balderas District 24 created several unconstitutional
partisan gerrymanders. Even if I believed that Plan
1374C were not invalid in its entirety, I would reverse the
judgment below with regard to Districts 6, 24, 26, and 32.
* * *
For the foregoing reasons, although I concur with the
majority’s decision to invalidate District 23 under §2 of the
Voting Rights Act, I respectfully dissent from the Court’s
decision to affirm the judgment below with respect to
plaintiffs’ partisan gerrymandering claim. I would reverse
with respect to the plan as a whole, and also, more specifi
cally, with respect to Districts 6, 24, 26, and 32.
 Cite as: 548 U. S. ____ (2006) 1

Opinion of SOUTER, J.

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 05–204, 05–254, 05–276 and 05–439
_________________

LEAGUE OF UNITED LATIN AMERICAN CITIZENS,
ET AL., APPELLANTS
05–204 v.
RICK PERRY, GOVERNOR OF TEXAS, ET AL.

TRAVIS COUNTY, TEXAS, ET AL., APPELLANTS
05–254 v.
RICK PERRY, GOVERNOR OF TEXAS, ET AL.

EDDIE JACKSON, ET AL., APPELLANTS
05–276 v.
RICK PERRY, GOVERNOR OF TEXAS, ET AL.

GI FORUM OF TEXAS, ET AL., APPELLANTS
05–439 v.
RICK PERRY, GOVERNOR OF TEXAS, ET AL.
ON APPEALS FROM THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF TEXAS
[June 28, 2006]

JUSTICE SOUTER, with whom JUSTICE GINSBURG joins,
concurring in part and dissenting in part.
I join Part II–D of the principal opinion, rejecting the
one-person, one-vote challenge to Plan 1374C based sim
ply on its mid-decade timing, and I also join Part II–A, in
which the Court preserves the principle that partisan
gerrymandering can be recognized as a violation of equal
protection, see Vieth v. Jubelirer, 541 U. S. 267, 306 (2004)
(KENNEDY, J., concurring in judgment); id., at 317
(STEVENS, J., dissenting); id., at 346 (SOUTER, J., dissent
2 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

PERRY

Opinion of SOUTER, J.

ing); id., at 355 (BREYER, J., dissenting). I see nothing to be
gained by working through these cases on the standard I
would have applied in Vieth, supra, at 346–355 (dissenting
opinion), because here as in Vieth we have no majority for
any single criterion of impermissible gerrymander (and
none for a conclusion that Plan 1374C is unconstitutional
across the board). I therefore treat the broad issue of ger
rymander much as the subject of an improvident grant of
certiorari, and add only two thoughts for the future: that I
do not share JUSTICE KENNEDY’s seemingly flat rejection of
any test of gerrymander turning on the process followed in
redistricting, see ante, at 10–14, nor do I rule out the utility
of a criterion of symmetry as a test, see, e.g., King & Brown
ing, Democratic Representation and Partisan Bias in Con
gressional Elections, 81 Am. Pol. Sci. Rev. 1251 (1987).
Interest in exploring this notion is evident, see ante, at 13
(principal opinion); ante, at 20–23 (STEVENS, J., concurring
in part and dissenting in part); post, at 2 (BREYER, J., con
curring in part and dissenting in part). Perhaps further
attention could be devoted to the administrability of such a
criterion at all levels of redistricting and its review.
I join Part III of the principal opinion, in which the Court
holds that Plan 1374C’s District 23 violates §2 of the Voting
Rights Act of 1965, 42 U. S. C. §1973, in diluting minority
voting strength. But I respectfully dissent from Part IV,
in which a plurality upholds the District Court’s rejection
of the claim that Plan 1374C violated §2 in cracking the
black population in the prior District 24 and submerging
its fragments in new Districts 6, 12, 24, 26, and 32. On
the contrary, I would vacate the judgment and remand for
further consideration.
The District Court made a threshold determination
resting reasonably on precedent of this Court and on a
clear rule laid down by the Fifth Circuit, see Valdespino v.
Alamo Heights Independent School Dist., 168 F. 3d 848,
852–853 (1999), cert. denied, 528 U. S. 1114 (2000): the
 Cite as: 548 U. S. ____ (2006) 3

Opinion of SOUTER, J.

first condition for making out a §2 violation, as set out in
Thornburg v. Gingles, 478 U. S. 30 (1986), requires “the
minority group . . . to demonstrate that it is sufficiently
large and geographically compact to constitute a majority
in a single-member district,” id., at 50, (here, the old
District 24) before a dilution claim can be recognized
under §2.1 Although both the plurality today and our own
prior cases have sidestepped the question whether a statu
tory dilution claim can prevail without the possibility of a
district percentage of minority voters above 50%, see ante,
at 37; Johnson v. De Grandy, 512 U. S. 997, 1008–1009
(1994); Voinovich v. Quilter, 507 U. S. 146, 154 (1993);
Growe v. Emison, 507 U. S. 25, 41, n. 5 (1993); Gingles,
supra, at 46, n. 12, the day has come to answer it.
Chief among the reasons that the time has come is the
holding in Georgia v. Ashcroft, 539 U. S. 461 (2003), that
replacement of a majority-minority district by a coalition
district with minority voters making up fewer than half
can survive the prohibition of retrogression under §5 of the
Voting Rights Act, 42 U. S. C. §1973c, enforced through
the preclearance requirement, Georgia, 539 U. S., at 482–
483. At least under §5, a coalition district can take on the
significance previously accorded to one with a majority-
minority voting population. Thus, despite the independ
ence of §§2 and 5, id., at 477–479, there is reason to think
that the integrity of the minority voting population in a
coalition district should be protected much as a majority-
minority bloc would be. While protection should begin
through the preclearance process,2 in jurisdictions where
——————
1 In a subsequent case, however, we did not state the first Gingles

condition in terms of an absolute majority. See Johnson v. De Grandy,
512 U. S. 997, 1008 (1994) (“[T]he 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”).
2 Like JUSTICE STEVENS, I agree with JUSTICE SCALIA that compliance
4 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

PERRY

Opinion of SOUTER, J.

that is required, if that process fails a minority voter has
no remedy under §5, because the State and the Attorney
General (or the District Court for the District of Columbia)
are the only participants in preclearance, see 42 U. S. C.
§1973c. And, of course, vast areas of the country are not
covered by §5. Unless a minority voter is to be left with no
recourse whatsoever, then, relief under §2 must be possi
ble, as by definition it would not be if a numerical majority
of minority voters in a reconstituted or putative district is
a necessary condition. I would therefore hold that a mi
nority of 50% or less of the voting population might suffice
at the Gingles gatekeeping stage. To have a clear-edged
rule, I would hold it sufficient satisfaction of the first
gatekeeping condition to show that minority voters in a
reconstituted or putative district constitute a majority of
those voting in the primary of the dominant party, that is,
the party tending to win in the general election.3
This rule makes sense in light of the explanation we
gave in Gingles for the first condition for entertaining a
claim for breach of the §2 guarantee of racially equal
opportunity “to elect representatives of . . . choice,” 42
U. S. C. §1973: “The reason that a minority group making
such a challenge must show, as a threshold matter, that it
is sufficiently large . . . is this: Unless minority voters
possess the potential to elect representatives in the ab
——————
with §5 is a compelling state interest. See ante, at 31, n. 12 (STEVENS,
J., concurring in part and dissenting in part); post, at 9 (SCALIA, J.,
concurring in judgment in part and dissenting in part).
3 I recognize that a minority group might satisfy the §2 “ability to

elect” requirement in other ways, and I do not mean to rule out other
circumstances in which a coalition district might be required by §2. A
minority group slightly less than 50% of the electorate in nonpartisan
elections for a local school board might, for example, show that it can
elect its preferred candidates owing to consistent crossover support
from members of other groups. Cf. Valdespino v. Alamo Heights
Independent School Dist., 168 F. 3d 848, 850–851 (CA5 1999), cert.
denied, 528 U. S. 1114 (2000).
 Cite as: 548 U. S. ____ (2006) 5

Opinion of SOUTER, J.

sence of the challenged structure or practice, they cannot
claim to have been injured by that structure or practice.”
478 U. S., at 50, n. 17 (emphasis deleted); see also id., at
90, n. 1 (O’Connor, J., concurring in judgment) (“[I]f a
minority group that is not large enough to constitute a
voting majority in a single-member district can show that
white support would probably be forthcoming in some such
district to an extent that would enable the 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”). Hence, we emphasized
that an analysis under §2 of the political process should be
“ ‘functional.’ ” Id., at 48, n. 15 (majority opinion); see also
Voinovich, supra, at 158 (“[T]he Gingles factors cannot be
applied mechanically and without regard to the nature of
the claim”). So it is not surprising that we have looked to
political-primary data in considering the second and third
Gingles conditions, to see whether there is racial bloc
voting. See, e.g., Abrams v. Johnson, 521 U. S. 74, 91–92
(1997); Gingles, supra, at 52–54, 59–60.
The pertinence of minority voters’ role in a primary is
obvious: a dominant party’s primary can determine the
representative ultimately elected, as we recognized years
ago in evaluating the constitutional importance of primary
elections. See United States v. Classic, 313 U. S. 299, 318–
319 (1941) (“Where the state law has made the primary an
integral part of the procedure of choice, or where in fact
the primary effectively controls the choice, the right of the
elector to have his ballot counted at the primary, is like
wise included in the right protected by Article I, §2. . . .
Here, . . . the right to choose a representative is in fact
controlled by the primary because, as is alleged in the
indictment, the choice of candidates at the Democratic
primary determines the choice of the elected representa
tive”); id., at 320 (“[A] primary election which involves a
6 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

PERRY

Opinion of SOUTER, J.

necessary step in the choice of candidates for election as
representatives in Congress, and which in the circum
stances of this case controls that choice, is an election
within the meaning of the constitutional provision”);
Smith v. Allwright, 321 U. S. 649, 660 (1944) (noting “[t]he
fusing by the Classic case of the primary and general
elections into a single instrumentality for choice of offi
cers”); id., at 661–662 (“It may now be taken as a postulate
that the right to vote in such a primary for the nomination
of candidates without discrimination by the State, like the
right to vote in a general election, is a right secured by the
Constitution. . . . Under our Constitution the great privi
lege of the ballot may not be denied a man by the State
because of his color”).4 These conclusions of our predeces
sors fit with recent scholarship showing that electoral
success by minorities is adequately predictable by taking
account of primaries as well as elections, among other
things. See Grofman, Handley, & Lublin, Drawing Effec
tive Minority Districts: A Conceptual Framework and
Some Empirical Evidence, 79 N. C. L. Rev. 1383 (2000–
2001).5
I would accordingly not reject this §2 claim at step one
of Gingles, nor on this record would I dismiss it by jump
ing to the ultimate §2 issue to be decided on a totality of
——————
4 Cf. California Democratic Party v. Jones, 530 U. S. 567, 575 (2000)

(“In no area is the political association’s right to exclude more impor
tant than in the process of selecting its nominee. That process often
determines the party’s positions on the most significant public policy
issues of the day, and even when those positions are predetermined it is
the nominee who becomes the party’s ambassador to the general
electorate in winning it over to the party’s views”).
5 One must be careful about what such electoral success ostensibly

shows; if the primary choices are constrained, say, by party rules, the
minority voters’ choice in the primary may not be truly their candidate
of choice, see McLoughlin, Note, Gingles In Limbo: Coalitional Districts,
Party Primaries and Manageable Vote Dilution Claims, 80 N. Y. U. L.
Rev. 312 (2005).
 Cite as: 548 U. S. ____ (2006) 7

Opinion of SOUTER, J.

the circumstances, see De Grandy, 512 U. S., at 1009–
1022, and determine that the black plaintiffs cannot show
that submerging them in the five new districts violated
their right to equal opportunity to participate in the politi
cal process and elect candidates of their choice. The plu
rality, on the contrary, is willing to accept the conclusion
that the minority voters lost nothing cognizable under §2
because they could not show the degree of control that
guaranteed a candidate of their choice in the old District
24. See ante, at 37–40. The plurality accepts this conclu
sion by placing great weight on the fact that Martin Frost,
the perennially successful congressional candidate in
District 24, was white. See, e.g., ante, at 38–39 (no clear
error in District Court’s findings that “no Black candidate
has ever filed in a Democratic primary against Frost,”
Session v. Perry, 298 F. Supp. 2d 451, 484 (ED Tex 2004)
(per curiam)), and “[w]e have no measure of what Anglo
turnout would be in a Democratic primary if Frost were
opposed by a Black candidate,” ibid.); ante, at 38–39 (no
clear error in District Court’s reliance on testimony of
Congresswoman Eddie Bernice Johnson that “District 24
was drawn for an Anglo Democrat (Martin Frost, in par
ticular) in 1991”).
There are at least two responses. First, “[u]nder §2, it is
the status of the candidate as the chosen representative of
a particular group, not the race of the candidate, that is
important.” Gingles, supra, at 68 (emphasis deleted).
Second, Frost was convincingly shown to have been the
“chosen representative” of black voters in old District 24.
In the absence of a black-white primary contest, the un
challenged evidence is that black voters dominated a
primary that consistently nominated the same and ulti
mately successful candidate; it takes more than specula
tion to rebut the demonstration that Frost was the candi
8 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

PERRY

Opinion of SOUTER, J.

date of choice of the black voters.6 There is no indication
that party rules or any other device rigged the primary
ballot so as to bar any aspirants the minority voters would
have preferred, see n. 5, supra, and the uncontroverted
and overwhelming evidence is that Frost was strongly
supported by minority voters after more than two decades
of sedulously considering minority interests, App. 107
(Frost’s rating of 94% on his voting record from the Na
tional Association for the Advancement of Colored People
exceeded the scores of all other members of the Texas
congressional delegation, including black and Hispanic
members of both major parties); id., at 218–219 (testimony
by State’s political-science expert that Frost is the African-
Americans’ candidate of choice); id., at 239 (testimony by
Ron Kirk, an African-American former mayor of Dallas
and U. S. Senate candidate, that Frost “has gained a very
strong base of support among African-American . . . voters
because of his strong voting records [in numerous areas]”
and has “an incredible following and amount of respect
among the African-American community”); id., at 240–241
(Kirk’s testimony that Frost has never had a contested
primary because he is beloved by the African-American
community, and that a black candidate, possibly including
himself, could not better Frost in a primary because of his
strong rapport with the black community); id., at 242–243
(testimony by county precinct administrator that Frost
has been the favored candidate of the African-American
community and there have been no primary challenges to
him because he “serves [African-American] interests”).7
——————
6 Judge Ward properly noted that the fact that Frost has gone unchal

lenged may “reflect favorably on his record” of responding to the con
cerns of minorities in the district. See Session v. Perry, 298 F. Supp. 2d
451, 530 (ED Tex. 2004) (opinion concurring in part and dissenting in
part).
7 In any event, although a history or prophecy of success in electing

candidates of choice is a powerful touchstone of §2 liability when
 Cite as: 548 U. S. ____ (2006) 9

Opinion of SOUTER, J.

It is not that I would or could decide at this point
whether the elimination of the prior district and composi
tion of the new one violates §2. The other Gingles gate-
keeping rules have to be considered, with particular atten
tion to the third, majority bloc voting, see 478 U. S., at 51,
since a claim to a coalition district is involved.8 And after
that would come the ultimate analysis of the totality of
circumstances. See De Grandy, supra, at 1009–1022.
I would go no further here than to hold that the enquiry
should not be truncated by or conducted in light of the
Fifth Circuit’s 50% rule,9 or by the candidate-of-choice
analysis just rejected. I would return the §2 claim on old
District 24 to the District Court, which has already la
bored so mightily on this case. All the members of the
three-judge court would be free to look again untethered
by the 50% barrier, and Judge Ward, in particular, would
——————
minority populations are cracked or packed, electoral success is not the
only manifestation of equal opportunity to participate in the political
process, see De Grandy, 512 U. S., at 1014, n. 11. The diminution of
that opportunity by taking minority voters who previously dominated
the dominant party’s primary and submerging them in a new district is
not readily discounted by speculating on the effects of a black-white
primary contest in the old district.
8 The way this third condition is understood when a claim of a puta

tive coalition district is made will have implications for the identifica
tion of candidate of choice under the first Gingles condition. Suffice it
to say here that the criteria may not be the same when dealing with
coalition districts as in cases of districts with majority-minority popula
tions. All aspects of our established analysis for majority-minority
districts in Gingles and its progeny may have to be rethought in analyz
ing ostensible coalition districts.
9 Notably, under the Texas Legislature’s Plan 1374C, there are three

undisputed districts where African-Americans tend to elect their
candidates of choice. African-Americans compose at most a citizen
voting age majority (50.6%) in one of the three, District 30, see Session,
supra, at 515; even there, the State’s expert pegged the percentage at
48.6%, App. 185–186. In any event, the others, Districts 9 and 18, are
coalition districts, with African-American citizen voting age populations
of 46.9% and 48.6% respectively. Id., at 184–185.
10 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

PERRY

Opinion of SOUTER, J.

have the opportunity to develop his reasons unconstrained
by the Circuit’s 50% rule, which he rightly took to limit his
consideration of the claim, see Session, 298 F. Supp. 2d, at
528–531 (opinion concurring in part and dissenting in
part).
 Cite as: 548 U. S. ____ (2006) 1

Opinion of BREYER, J.

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 05–204, 05–254, 05–276 and 05–439
_________________

LEAGUE OF UNITED LATIN AMERICAN CITIZENS,
ET AL., APPELLANTS
05–204 v.
RICK PERRY, GOVERNOR OF TEXAS, ET AL.

TRAVIS COUNTY, TEXAS, ET AL., APPELLANTS
05–254 v.
RICK PERRY, GOVERNOR OF TEXAS, ET AL.

EDDIE JACKSON, ET AL., APPELLANTS
05–276 v.
RICK PERRY, GOVERNOR OF TEXAS, ET AL.

GI FORUM OF TEXAS, ET AL., APPELLANTS
05–439 v.
RICK PERRY, GOVERNOR OF TEXAS, ET AL.
ON APPEALS FROM THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF TEXAS
[June 28, 2006]

JUSTICE BREYER, concurring in part and dissenting in
part.
I join Parts II–A and III of the Court’s opinion. I also
join Parts I and II of JUSTICE STEVENS’ opinion concurring
in part and dissenting in part.
For one thing, the timing of the redistricting (between
census periods), the radical departure from traditional
boundary-drawing criteria, and the other evidence to
which JUSTICE STEVENS refers in Parts I and II of his
opinion make clear that a “desire to maximize partisan
2 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.
PERRY
Opinion of BREYER, J.

advantage” was the “sole purpose behind the decision to
promulgate Plan 1374C.” Ante, at 12. Compare, e.g., App.
176–178; ante, at 7–9, 13 (STEVENS, J., concurring in part
and dissenting in part), with Vieth v. Jubelirer, 541 U. S.
267, 366–367 (2004) (BREYER, J., dissenting).
For another thing, the evidence to which JUSTICE
STEVENS refers in Part III of his opinion demonstrates
that the plan’s effort “to maximize partisan advantage,”
ante, at 13 (STEVENS, J., concurring in part and dissenting
in part), encompasses an effort not only to exaggerate the
favored party’s electoral majority but also to produce a
majority of congressional representatives even if the fa
vored party receives only a minority of popular votes.
Compare id., at 20–22 (STEVENS, J., concurring in part
and dissenting in part), App. 55 (plaintiffs’ expert); id., at
216 (State’s expert), with Vieth, supra, at 360.
Finally, because the plan entrenches the Republican
Party, the State cannot successfully defend it as an effort
simply to neutralize the Democratic Party’s previous po
litical gerrymander. Nor has the State tried to justify the
plan on nonpartisan grounds, either as an effort to achieve
legislative stability by avoiding legislative exaggeration of
small shifts in party preferences, see Vieth, supra, at 359,
or in any other way.
In sum, “the risk of entrenchment is demonstrated,”
“partisan considerations [have] render[ed] the traditional
district-drawing compromises irrelevant,” and “no justifi
cation other than party advantage can be found.” 541
U. S., at 367. The record reveals a plan that overwhelm
ingly relies upon the unjustified use of purely partisan
line-drawing considerations and which will likely have
seriously harmful electoral consequences. Ibid. For these
reasons, I believe the plan in its entirety violates the
Equal Protection Clause.
 Cite as: 548 U. S. ____ (2006) 1

Opinion of ROBERTS, C. J.

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 05–204, 05–254, 05–276 and 05–439
_________________

LEAGUE OF UNITED LATIN AMERICAN CITIZENS,
ET AL., APPELLANTS
05–204 v.
RICK PERRY, GOVERNOR OF TEXAS, ET AL.

TRAVIS COUNTY, TEXAS, ET AL., APPELLANTS
05–254 v.
RICK PERRY, GOVERNOR OF TEXAS, ET AL.

EDDIE JACKSON, ET AL., APPELLANTS
05–276 v.
RICK PERRY, GOVERNOR OF TEXAS, ET AL.

GI FORUM OF TEXAS, ET AL., APPELLANTS
05–439 v.
RICK PERRY, GOVERNOR OF TEXAS, ET AL.

ON APPEALS FROM THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF TEXAS

[June 28, 2006]

CHIEF JUSTICE ROBERTS, with whom JUSTICE ALITO
joins, concurring in part, concurring in the judgment in
part, and dissenting in part.
I join Parts I and IV of the plurality opinion. With regard
to Part II, I agree with the determination that appellants
have not provided “a reliable standard for identifying
unconstitutional political gerrymanders.” Ante, at 16.
2 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

PERRY

Opinion of ROBERTS, C. J.

The question whether any such standard exists—that is,
whether a challenge to a political gerrymander presents a
justiciable case or controversy—has not been argued in
these cases. I therefore take no position on that question,
which has divided the Court, see Vieth v. Jubelirer, 541
U. S. 267 (2004), and I join the Court’s disposition in Part
II without specifying whether appellants have failed to
state a claim on which relief can be granted, or have failed
to present a justiciable controversy.
I must, however, dissent from Part III of the Court’s
opinion. According to the District Court’s factual findings,
the State’s drawing of district lines in south and west
Texas caused the area to move from five out of seven
effective Latino opportunity congressional districts, with
an additional district “moving” in that direction, to six out
of seven effective Latino opportunity districts. See Session
v. Perry, 298 F. Supp. 2d 451, 489, 503–504 (ED Tex. 2004)
(per curiam). The end result is that while Latinos make
up 58% of the citizen voting age population in the area,
they control 85% (six of seven) of the districts under the
State’s plan.
In the face of these findings, the majority nonetheless
concludes that the State’s plan somehow dilutes the voting
strength of Latinos in violation of §2 of the Voting Rights
Act. The majority reaches its surprising result because it
finds that Latino voters in one of the State’s Latino oppor
tunity districts—District 25—are insufficiently compact,
in that they consist of two different groups, one from
around the Rio Grande and another from around Austin.
According to the majority, this may make it more difficult
for certain Latino-preferred candidates to be elected from
that district—even though Latino voters make up 55% of
the citizen voting age population in the district and vote as
a bloc. Id., at 492, n. 126, 503. The majority prefers old
District 23, despite the District Court determination that
new District 25 is “a more effective Latino opportunity
 Cite as: 548 U. S. ____ (2006) 3

Opinion of ROBERTS, C. J.

district than Congressional District 23 had been.” Id., at
503; see id., at 489, 498–499. The District Court based
that determination on a careful examination of regression
analysis showing that “the Hispanic-preferred candidate
[would win] every primary and general election examined
in District 25,” id., at 503 (emphasis added), compared to
the only partial success such candidates enjoyed in former
District 23, id., at 488, 489, 496.
The majority dismisses the District Court’s careful
factfinding on the ground that the experienced judges did
not properly consider whether District 25 was “compact”
for purposes of §2. Ante, at 24. But the District Court
opinion itself clearly demonstrates that the court carefully
considered the compactness of the minority group in Dis
trict 25, just as the majority says it should have. The
District Court recognized the very features of District 25
highlighted by the majority and unambiguously concluded,
under the totality of the circumstances, that the district
was an effective Latino opportunity district, and that no
violation of §2 in the area had been shown.
Unable to escape the District Court’s factfinding, the
majority is left in the awkward position of maintaining
that its theory about compactness is more important under
§2 than the actual prospects of electoral success for La
tino-preferred candidates under a State’s apportionment
plan. And that theory is a novel one to boot. Never before
has this or any other court struck down a State’s redis
tricting plan under §2, on the ground that the plan
achieves the maximum number of possible majority-
minority districts, but loses on style points, in that the
minority voters in one of those districts are not as “com
pact” as the minority voters would be in another district
were the lines drawn differently. Such a basis for liability
pushes voting rights litigation into a whole new area—an
area far removed from the concern of the Voting Rights
Act to ensure minority voters an equal opportunity “to
4 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

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Opinion of ROBERTS, C. J.

elect representatives of their choice.” 42 U. S. C. §1973(b).
I
Under §2, a plaintiff alleging “a denial or abridgement of
the right of [a] citizen of the United States to vote on
account of race or color,” §1973(a), must show, “based on
the totality of circumstances,”
“that the political processes leading to nomination or
election in the State or political subdivision are not
equally open to participation by members of a class of
citizens protected by subsection (a) . . . in that its
members have less opportunity than other members
of the electorate to participate in the political process
and to elect representatives of their choice.” §1973(b).
In Thornburg v. Gingles, 478 U. S. 30 (1986), we found
that a plaintiff challenging the State’s use of multimember
districts could meet this standard by showing that re
placement of the multimember district with several single-
member districts would likely provide minority voters in
at least some of those single-member districts “the ability
. . . to elect representatives of their choice.” Id., at 48. The
basis for this requirement was simple: If no districts were
possible in which minority voters had prospects of elec
toral success, then the use of multimember districts could
hardly be said to thwart minority voting power under §2.
See ibid. (“Minority voters who contend that the multi
member form of districting violates §2 must prove that the
use of a multimember electoral structure operates to
minimize or cancel out their ability to elect their preferred
candidates”).
The next generation of voting rights litigation confirmed
that “manipulation of [single-member] district lines” could
also dilute minority voting power if it packed minority
voters in a few districts when they might control more, or
dispersed them among districts when they might control
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some. Voinovich v. Quilter, 507 U. S. 146, 153–154 (1993).
Again the basis for this application of Gingles was clear: A
configuration of district lines could only dilute minority
voting strength if under another configuration minority
voters had better electoral prospects. Thus in cases involv
ing single-member districts, the question was whether an
additional majority-minority district should be created, see
Abrams v. Johnson, 521 U. S. 74, 91–92 (1997); Growe v.
Emison, 507 U. S. 25, 38 (1993), or whether additional
influence districts should be created to supplement existing
majority-minority districts, see Voinovich, supra, at 154.
We have thus emphasized, since Gingles itself, that a §2
plaintiff must at least show an apportionment that is likely
to perform better for minority voters, compared to the exist
ing one. See 478 U. S., at 99 (O’Connor, J., concurring in
judgment) (“[T]he relative lack of minority electoral success
under a challenged plan, when compared with the success
that would be predicted under the measure of undiluted
minority voting strength the court is employing, can consti
tute powerful evidence of vote dilution”). And unsurpris
ingly, in the context of single-member districting schemes,
we have invariably understood this to require the possibility
of additional single-member districts that minority voters
might control.
Johnson v. De Grandy, 512 U. S. 997 (1994), reaffirmed
this understanding. The plaintiffs in De Grandy claimed
that, by reducing the size of the Hispanic majority in some
districts, additional Hispanic-majority districts could be
created. Id., at 1008. The State defended a plan that did
not do so on the ground that the proposed additional dis
tricts, while containing nominal Hispanic majorities, would
“lack enough Hispanic voters to elect candidates of their
choice without cross-over votes from other ethnic groups,”
and thus could not bolster Hispanic voting strength under
§2. Ibid.
In keeping with the requirement that a §2 plaintiff must
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show that an alternative apportionment would present
better prospects for minority-preferred candidates, the Court
set out the condition that a challenge to an existing set of
single-member districts must show the possibility of “creat
ing more than the existing number of reasonably compact
districts with a sufficiently large minority population to
elect candidates of its choice.” Ibid. De Grandy confirmed
that simply proposing a set of districts that divides up a
minority population in a different manner than the State
has chosen, without a gain in minority opportunity districts,
does not show vote dilution, but “only that lines could have
been drawn elsewhere.” Id., at 1015.
Here the District Court found that six majority-Latino
districts were all that south and west Texas could support.
Plan 1374C provides six such districts, just as its predeces
sor did. This fact, combined with our precedent making
clear that §2 plaintiffs must show an alternative with better
prospects for minority success, should have resulted in
affirmance of the District Court decision on vote dilution in
south and west Texas. See Gingles, supra, at 79 (“[T]he
clearly-erroneous test of [Federal Rule of Civil Procedure]
52(a) is the appropriate standard for appellate review of a
finding of vote dilution. . . . [W]hether the political process
is equally open to minority voters . . . is peculiarly depend
ent upon the facts” (internal quotation marks omitted));
Rogers v. Lodge, 458 U. S. 613, 622, 627 (1982).
The majority avoids this result by finding fault with the
District Court’s analysis of one of the Latino-majority
districts in the State’s plan. That district—District 25—is
like other districts in the State’s plan, like districts in the
predecessor plan, and like districts in the plaintiffs’ pro
posed seven-district plan, in that it joins population con
centrations around the border area with others closer to
the center of the State. The District Court explained that
such “ ‘bacon-strip’ ” districts are inevitable, given the
geography and demography of that area of the State.
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Session, 298 F. Supp. 2d, at 486–487, 490, 491, n. 125,
502.
The majority, however, criticizes the District Court be
cause its consideration of the compactness of District 25
under §2 was deficient. According to the majority,
“the court analyzed the issue only for equal protection
purposes. In the equal protection context, compact
ness focuses on the contours of district lines to deter
mine whether race was the predominant factor in
drawing those lines. Under §2, by contrast, the injury
is vote dilution, so the compactness inquiry embraces
different considerations.” Ante, at 26 (citation
omitted).
This is simply an inaccurate description of the District
Court’s opinion. The District Court expressly considered
compactness in the §2 context. That is clear enough from
the fact that the majority quotes the District Court’s opinion
in elaborating on the standard of compactness it believes the
District Court should have applied. See ante, at 18 (quot
ing Session, supra, at 502); ante, at 28 (quoting Session,
supra, at 502). The very passage quoted by the majority
about the different “ ‘needs and interests’ ” of the communi
ties in District 25, ante, at 18, appeared in the District Court
opinion precisely because the District Court recognized that
those concerns “bear on the extent to which the new dis
tricts”—including District 25—“are functionally effective
Latino opportunity districts, important to understanding
whether dilution results from Plan 1374C.” Session, 298
F. Supp. 2d, at 502 (emphasis added); see also ibid. (noting
different “needs and interests of Latino communities” in the
“‘bacon-strip’” districts and concluding that “[t]he issue is
whether these features mean that the newly-configured
districts dilute the voting strength of Latinos” (emphasis
added)).
Indeed, the District Court addressed compactness in two
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different sections of its opinion: in Part VI–C with respect to
vote dilution under §2, and in Part VI–D with respect to
whether race predominated in drawing district lines, for
purposes of equal protection analysis. The District Court
even explained, in considering in Part VI–C the differences
between the Latino communities in the bacon-strip districts
(including District 25) for purposes of vote dilution under §2,
how the same concerns bear on the plaintiffs’ equal protec
tion claim, discussed in Part VI–D. Id., at 502, n. 168. The
majority faults the District Court for discussing “the relative
smoothness of the district lines,” because that is only perti
nent in the equal protection context, ante, at 24, but it was
only in the equal protection context that the District Court
mentioned the relative smoothness of district lines. See 298
F. Supp. 2d, at 506–508. In discussing compactness in Part
VI–C, with respect to vote dilution under §2, the District
Court considered precisely what the majority says it should
have: the diverse needs and interests of the different Latino
communities in the district. Unlike the majority, however,
the District Court properly recognized that the question
under §2 was “whether these features mean that the newly-
configured districts dilute the voting strength of Latinos.”
Id., at 502.
The District Court’s answer to that question was unambi
guous:
“Witnesses testified that Congressional Districts 15
and 25 would span colonias in Hidalgo County and
suburban areas in Central Texas, but the witnesses
testified, and the regression data show, that both dis
tricts are effective Latino opportunity districts, with
the Hispanic-preferred candidate winning every pri
mary and general election examined in District 25.”
Id., at 503.
The District Court emphasized this point again later on:
“The newly-configured Districts 15, 25, 27, and 28
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cover more territory and travel farther north than did
the corresponding districts in Plan 1151C. The dis
tricts combine more voters from the central part of the
State with voters from the border cities than was the
case in Plan 1151C. The population data, regression
analyses, and the testimony of both expert witnesses
and witnesses knowledgeable about how politics actu
ally works in the area lead to the finding that in Con
gressional Districts 25 and 28, Latino voters will
likely control every primary and general election out
come.” Id., at 503–504.
I find it inexplicable how the majority can read these
passages and state that the District Court reached its find
ing on the effectiveness of District 25 “without accounting
for the detrimental consequences of its compactness prob
lems.” Ante, at 35. The majority does “not question” the
District Court’s parsing of the statistical evidence to reach
the finding that District 25 was an effective Latino opportu
nity district. Ante, at 28. But the majority nonetheless
rejects that finding, based on its own theory that “[t]he
practical consequence of drawing a district to cover two
distant, disparate communities is that one or both groups
will be unable to achieve their political goals,” ante, at 27,
and because the finding rests on the “prohibited assump
tion” that voters of the same race will “think alike, share
the same political interests, and will prefer the same candi
dates at the polls,” ibid. (citations and internal quotation
marks omitted). It is important to be perfectly clear about
the following, out of fairness to the District Court if for no
other reason: No one has made any “assumptions” about
how voters in District 25 will vote based on their ethnic
background. Not the District Court; not this dissent.
There was a trial. At trials, assumptions and assertions
give way to facts. In voting rights cases, that is typically
done through regression analyses of past voting records.
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Here, those analyses showed that the Latino candidate of
choice prevailed in every primary and general election
examined for District 25. See Session, 298 F. Supp. 2d, at
499–500. Indeed, a plaintiffs’ expert conceded that Latino
voters in District 25 “have an effective opportunity to
control outcomes in both primary and general elections.”
Id., at 500. The District Court, far from “assum[ing]” that
Latino voters in District 25 would “prefer the same candi
date at the polls,” concluded that they were likely to do so
based on statistical evidence of historic voting patterns.
Contrary to the erroneous statements in the majority
opinion, the District Court judges did not simply “aggre
gat[e]” minority voters to measure effectiveness. Ante, at
26. They did not simply rely on the “mathematical possibil
ity” of minority voters voting for the same preferred candi
date, ante, at 28, and it is a disservice to them to state oth
erwise. It is the majority that is indulging in unwarranted
“assumption[s]” about voting, contrary to the facts found at
trial based on carefully considered evidence.
What is blushingly ironic is that the district preferred by
the majority—former District 23—suffers from the same
“flaw” the majority ascribes to District 25, except to a
greater degree. While the majority decries District 25 be
cause the Latino communities there are separated by
“enormous geographical distance,” ante, at 29, and are
“hundreds of miles apart,” ante, at 35, Latino communities
joined to form the voting majority in old District 23 are
nearly twice as far apart. Old District 23 runs “from El
Paso, over 500 miles, into San Antonio and down into
Laredo. It covers a much longer distance than . . . the 300
miles from Travis to McAllen [in District 25].” App. 292
(testimony of T. Giberson); see id., at 314 (report of T. Gib
erson) (“[D]istrict 23 in any recent Congressional plan ex
tends from the outskirts of El Paso down to Laredo, dipping
into San Antonio and spanning 540 miles”). So much for the
significance of “enormous geographical distance.” Or per
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haps the majority is willing to “assume” that Latinos around
San Antonio have common interests with those on the Rio
Grande rather than those around Austin, even though San
Antonio and Austin are a good bit closer to each other (less
than 80 miles apart) than either is to the Rio Grande.*
The District Court considered expert evidence on pro
jected election returns and concluded that District 25 would
likely perform impeccably for Latino voters, better indeed
than former District 23. See Session, 298 F. Supp. 2d, at
503–504, 488, 489, 496. The District Court also concluded
that the other districts in Plan 1374C would give Latino
voters a favorable opportunity to elect their preferred candi
dates. See id., at 499 (observing the parties’ agreement that
Districts 16 and 20 in Plan 1374C “do clearly provide effec
——————
* The majority’s fig leaf after stressing the distances involved in Dis
trict 25—while ignoring the greater ones in former District 23—is to
note that “it is the enormous geographical distance separating the
Austin and Mexican-border communities, coupled with the disparate
needs and interests of these populations—not either factor alone—that
renders District 25 noncompact for §2 purposes.” Ante, at 28, 29. Of
course no single factor is determinative, because the ultimate question
is whether the district is an effective majority-minority opportunity
district. There was a trial on that; the District Court found that Dis
trict 25 was, while former District 23 “did not perform as an effective
opportunity district.” Session v. Perry, 298 F. Supp. 2d 451, 496 (ED
Tex. 2004) (per curiam). The majority notes that there was no chal
lenge to or finding on the compactness of old District 23, ante, at 29—
certainly not compared to District 25—but presumably that was be
cause, as the majority does not dispute, “[u]ntil today, no court has ever
suggested that lack of compactness under §2 might invalidate a district
that a State has chosen to create in the first instance.” Infra, at 15.
The majority asserts that Latino voters in old District 23 had found an
“efficacious political identity,” while doing so would be a challenge for
such voters in District 25, ante, at 29, but the latter group has a dis
tinct advantage over the former in this regard: They actually vote to a
significantly greater extent. See App. 187 (report of R. Gaddie) (for
Governor and Senate races in 2002, estimated Latino turnout for
District 25 was 46% to 51%, compared to 41.3% and 44% for District
23).
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tive Latino citizen voting age population majorities”); id., at
504 (“Latino voters will likely control every primary and
general election outcome” in District 28, and “every primary
outcome and almost every general election outcome” in
Districts 15 and 27, under Plan 1374C). In light of these
findings, the District Court concluded that “compared to
Plan 1151C . . . Plaintiffs have not shown an impermissible
reduction in effective opportunities for Latino electoral
control or in opportunities for Latino participation in the
political process.” Ibid.
Viewed against this backdrop, the majority’s holding that
Plan 1374C violates §2 amounts to this: A State has denied
minority voters equal opportunity to “participate in the
political process and to elect representatives of their choice,”
42 U. S. C. §1973(b), when the districts in the plan a State
has created have better prospects for the success of minority-
preferred candidates than an alternative plan, simply be
cause one of the State’s districts combines different minority
communities, which, in any event, are likely to vote as a
controlling bloc. It baffles me how this could be vote dilu
tion, let alone how the District Court’s contrary conclusion
could be clearly erroneous.
II
The majority arrives at the wrong resolution because it
begins its analysis in the wrong place. The majority de
clares that a Gingles violation is made out “[c]onsidering”
former District 23 “in isolation,” and chides the State for
suggesting that it can remedy this violation “by creating
new District 25 as an offsetting opportunity district.”
Ante, at 22. According to the majority, Ҥ2 does not forbid
the creation of a noncompact majority-minority district,”
but “[t]he noncompact district cannot . . . remedy a viola
tion elsewhere in the State.” Ante, at 24.
The issue, however, is not whether a §2 violation in
District 23, viewed “in isolation,” can be remedied by the
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Opinion of ROBERTS, C. J.

creation of a Latino opportunity district in District 25.
When the question is where a fixed number of majority-
minority districts should be located, the analysis should
never begin by asking whether a Gingles violation can be
made out in any one district “in isolation.” In these cir
cumstances, it is always possible to look at one area of
minority population “in isolation” and see a “violation” of
§2 under Gingles. For example, if a State drew three
districts in a group, with 60% minority voting age popula
tion in the first two, and 40% in the third, the 40% can
readily claim that their opportunities are being thwarted
because they were not grouped with an additional 20% of
minority voters from one of the other districts. But the
remaining minority voters in the other districts would
have precisely the same claim if minority voters were
shifted from their districts to join the 40%. See De
Grandy, 512 U. S., at 1015–1016 (“[S]ome dividing by dis
trict lines and combining within them is virtually inevitable
and befalls any population group of substantial size”). That
is why the Court has explained that no individual minority
voter has a right to be included in a majority-minority dis
trict. See Shaw v. Hunt, 517 U. S. 899, 917, and n. 9 (1996)
(Shaw II); id., at 947 (STEVENS, J., dissenting). Any other
approach would leave the State caught between incompati
ble claims by different groups of minority voters. See Ses
sion, supra, at 499 (“[T]here is neither sufficiently dense and
compact population in general nor Hispanic population in
particular to support” retaining former District 23 and
adding District 25).
The correct inquiry under §2 is not whether a Gingles
violation can be made out with respect to one district “in
isolation,” but instead whether line-drawing in the chal
lenged area as a whole dilutes minority voting strength. A
proper focus on the district lines in the area as a whole also
demonstrates why the majority’s reliance on Bush v. Vera,
517 U. S. 952 (1996), and Shaw II is misplaced.
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In those cases, we rejected on the basis of lack of com
pactness districts that a State defended against equal pro
tection strict scrutiny on the grounds that they were neces
sary to avoid a §2 violation. See Vera, supra, at 977–981
(plurality opinion); Shaw II, supra, at 911, 916–918. But
those cases never suggested that a plaintiff proceeding
under §2 could rely on lack of compactness to prove liability.
And the districts in those cases were nothing like District 25
here. To begin with, they incorporated multiple, small,
farflung pockets of minority population, and did so by ignor
ing the boundaries of political subdivisions. Vera, supra, at
987–989 (Appendices A–C to plurality opinion) (depicting
districts); Shaw II, supra, at 902–903 (describing districts).
Here the District Court found that the long and narrow but
more normal shape of District 25 was shared by other dis
tricts both in the state plan and the predecessor plan—not
to mention the plaintiffs’ own proposed plan—and resulted
from the demography and geography of south and west
Texas. See Session, 298 F. Supp. 2d, at 487–488, 491, and
n. 125. And none of the minority voters in the Vera and
Shaw II districts could have formed part of a Gingles
compliant district, see Vera, supra, at 979 (plurality opinion)
(remarking of one of the districts at issue that it “reaches
out to grab small and apparently isolated minority commu
nities which, based on the evidence presented, could not
possibly form part of a compact majority-minority district”);
Shaw II, 517 U. S., at 916–917 (describing the challenged
district as “in no way coincident with the compact Gingles
district”); while here no one disputes that at least the Latino
voters in the border area of District 25—the larger concen
tration—must be part of a majority-Latino district if six are
to be placed in south and west Texas.
This is not, therefore, a case of the State drawing a ma
jority-minority district “anywhere,” once a §2 violation has
been established elsewhere in the State. Id., at 917. The
question is instead whether the State has some latitude in
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Opinion of ROBERTS, C. J.

deciding where to place the maximum possible number of
majority-minority districts, when one of those districts
contains a substantial proportion of minority voters who
must be in a majority-minority district if the maximum
number is to be created at all.
Until today, no court has ever suggested that lack of
compactness under §2 might invalidate a district that a
State has chosen to create in the first instance. The “geo
graphica[l] compact[ness]” of a minority population has
previously been only an element of the plaintiff’s case. See
Gingles, 478 U. S., at 49–50. That is to say, the §2 plain
tiff bears the burden of demonstrating that “the minority
group . . . is sufficiently large and geographically compact
to constitute a majority in a single-member district.” Id.,
at 50. Thus compactness, when it has been invoked by
lower courts to defeat §2 claims, has been applied to a
remedial district a plaintiff proposes. See, e.g., Sensley v.
Albritton, 385 F. 3d 591, 596–597 (CA5 2004); Mallory v.
Ohio, 173 F. 3d 377, 382–383 (CA6 1999); Stabler v.
County of Thurston, 129 F. 3d 1015, 1025 (CA8 1997).
Indeed, the most we have had to say about the compactness
aspect of the Gingles inquiry is to profess doubt whether it
was met when the district a §2 plaintiff proposed was “oddly
shaped.” Growe v. Emison, 507 U. S., at 38, 41. And even
then, we rejected §2 liability not because of the odd shape,
but because no evidence of majority bloc voting had been
submitted. Id., at 41–42.
Far from imposing a freestanding compactness obligation
on the States, we have repeatedly emphasized that “States
retain broad discretion in drawing districts to comply with
the mandate of §2,” Shaw II, supra, at 917, n. 9, and that §2
itself imposes “no per se prohibitions against particular
types of districts,” Voinovich v. Quilter, 507 U. S., at 155.
We have said that the States retain “flexibility” in comply
ing with voting rights obligations that “federal courts enforc
ing §2 lack.” Vera, supra, at 978. The majority’s intrusion
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into line-drawing, under the authority of §2, when the lines
already achieve the maximum possible number of majority-
minority opportunity districts, suggests that all this is just
so much hollow rhetoric.
The majority finds fault in a “one-way rule whereby
plaintiffs must show compactness but States need not,”
ante, at 25, without bothering to explain how its contrary
rule of equivalence between plaintiffs litigating and the
elected representatives of the people legislating comports
with our repeated assurances concerning the discretion
and flexibility left to the States. Section 2 is, after all,
part of the Voting Rights Act, not the Compactness Rights
Act. The word “compactness” appears nowhere in §2, nor
even in the agreed-upon legislative history. See Gingles,
supra, at 36–37. To bestow on compactness such prece
dence in the §2 inquiry is the antithesis of the totality test
that the statute contemplates. De Grandy, 512 U. S., at
1011 (“[T]he ultimate conclusions about equality or ine
quality of opportunity were intended by Congress to be
judgments resting on comprehensive, not limited, canvass
ing of relevant facts”). Suggesting that determinative
weight should have been given this one factor contravenes
our understanding of how §2 analysis proceeds, see
Gingles, 478 U. S., at 45 (quoting statement from the
legislative history of §2 that “ ‘there is no requirement that
any particular number of factors be proved, or that a
majority of them point one way or the other’ ”), particu
larly when the proper standard of review for the District
Court’s ultimate judgment under §2 is clear error. See id.,
at 78–79.
A §2 plaintiff has no legally protected interest in com
pactness, apart from how deviations from it dilute the
equal opportunity of minority voters “to elect representa
tives of their choice.” §1973(b). And the District Court
found that any effect on this opportunity caused by the
different “needs and interests” of the Latino voters within
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District 25 was at least offset by the fact that, despite
these differences, they were likely to prefer the same
candidates at the polls. This finding was based on the
evidence, not assumptions.
Whatever the competing merits of old District 23 and new
District 25 at the margins, judging between those two ma
jority-minority districts is surely the responsibility of the
legislature, not the courts. See Georgia v. Ashcroft, 539
U. S. 461, 480 (2003). The majority’s squeamishness about
the supposed challenge facing a Latino-preferred candidate
in District 25—having to appeal to Latino voters near the
Rio Grande and those near Austin—is not unlike challenges
candidates face around the country all the time, as part of a
healthy political process. It is in particular not unlike the
challenge faced by a Latino-preferred candidate in the
district favored by the majority, former District 23, who
must appeal to Latino voters both in San Antonio and in El
Paso, 540 miles away. “[M]inority voters are not immune
from the obligation to pull, haul, and trade to find common
political ground, the virtue of which is not to be slighted in
applying a statute meant to hasten the waning of racism in
American politics.” De Grandy, 512 U. S., at 1020. As the
Court has explained, “the ultimate right of §2 is equality of
opportunity, not a guarantee of electoral success for minor
ity-preferred candidates of whatever race.” Id., at 1014,
n. 11. Holding that such opportunity is denied because a
State draws a district with 55% minority citizen voting-
age population, rather than keeping one with a similar
percentage (but lower turnout) that did not in any event
consistently elect minority-preferred candidates, gives an
unfamiliar meaning to the word “opportunity.”
III
Even if a plaintiff satisfies the Gingles factors, a finding
of vote dilution under §2 does not automatically follow. In
De Grandy, we identified another important aspect of the
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totality inquiry under §2: whether “minority voters form
effective voting majorities in a number of districts roughly
proportional to the minority voters’ respective shares in
the voting-age population.” 512 U. S., at 1000. A finding of
proportionality under this standard can defeat §2 liability
even if a clear Gingles violation has been made out. In De
Grandy itself, we found that “substantial proportionality”
defeated a claim that the district lines at issue “diluted the
votes cast by Hispanic voters,” 512 U. S., at 1014–1015, even
assuming that the plaintiffs had shown “the possibility of
creating more than the existing number of reasonably com
pact districts with a sufficiently large minority population to
elect candidates of its choice.” Id., at 1008–1009 (emphasis
added).
The District Court determined that south and west Texas
was the appropriate geographic frame of reference for ana
lyzing proportionality: “If South and West Texas is the only
area in which Gingles is applied and can be met, as Plain
tiffs argue, it is also the relevant area for measuring propor
tionality.” Session, 298 F. Supp. 2d, at 494. As the court
explained, “[l]ower courts that have analyzed ‘proportional
ity’ in the De Grandy sense have been consistent in using
the same frame of reference for that factor and for the fac
tors set forth in Gingles.” Id., at 493–494, and n. 131 (citing
cases).
In south and west Texas, Latinos constitute 58% of the
relevant population and control 85% (six out of seven) of
the congressional seats in that region. That includes
District 25, because the District Court found, without
clear error, that Latino voters in that district “will likely
control every primary and general election outcome.” Id.,
at 504. But even not counting that district as a Latino
opportunity district, because of the majority’s misplaced
compactness concerns, Latinos in south and west Texas
still control congressional seats in a markedly greater
proportion—71% (five out of seven)—than their share of
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the population there. In other words, in the only area in
which the Gingles factors can be satisfied, Latino voters
enjoy effective political power 46% above their numerical
strength, or, even disregarding District 25 as an opportu
nity district, 24% above their numerical strength. See De
Grandy, 512 U. S., at 1017, n. 13. Surely these figures do
not suggest a denial of equal opportunity to participate in
the political process.
The majority’s only answer is to shift the focus to state
wide proportionality. In De Grandy itself, the Court re
jected an argument that proportionality should be analyzed
on a statewide basis as “flaw[ed],” because “the argument
would recast these cases as they come to us, in order to bar
consideration of proportionality except on statewide scope,
whereas up until now the dilution claims have been litigated
on a smaller geographical scale.” Id., at 1021–1022. The
same is true here: The plaintiffs’ §2 claims concern “the
impact of the legislative plan on Latino voting strength in
South and West Texas,” Session, supra, at 486 (emphasis
added), and that is the only area of the State in which they
can satisfy the Gingles factors. That is accordingly the
proper frame of reference in analyzing proportionality.
In any event, at a statewide level, 6 Latino opportunity
districts out of 32, or 19% of the seats, would certainly seem
to be “roughly proportional” to the Latino 22% share of the
population. See De Grandy, supra, at 1000. The District
Court accordingly determined that proportionality sug
gested the lack of vote dilution, even considered on a state
wide basis. Session, supra, at 494. The majority avoids that
suggestion by disregarding the District Court’s factual
finding that District 25 is an effective Latino opportunity
district. That is not only improper, for the reasons given,
but the majority’s rejection of District 25 as a Latino oppor
tunity district is also flatly inconsistent with its statewide
approach to analyzing proportionality. Under the majority’s
view, the Latino voters in the northern end of District 25
20 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

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Opinion of ROBERTS, C. J.

cannot “count” along with the Latino voters at the southern
end to form an effective majority, because they belong to
different communities. But Latino voters from everywhere
around the State of Texas—even those from areas where the
Gingles factors are not satisfied—can “count” for purposes of
calculating the proportion against which effective Latino
electoral power should be measured. Heads the plaintiffs
win; tails the State loses.
* * *
The State has drawn a redistricting plan that provides six
of seven congressional districts with an effective majority of
Latino voting-age citizens in south and west Texas, and it is
not possible to provide more. The majority nonetheless
faults the state plan because of the particular mix of Latino
voters forming the majority in one of the six districts—a
combination of voters from around the Rio Grande and from
around Austin, as opposed to what the majority uncritically
views as the more monolithic majority assembled (from
more farflung communities) in old District 23. This despite
the express factual findings, from judges far more familiar
with Texas than we are, that the State’s new district would
be a more effective Latino majority district than old District
23 ever was, and despite the fact that any plan would neces
sarily leave some Latino voters outside a Latino-majority
district.
Whatever the majority believes it is fighting with its
holding, it is not vote dilution on the basis of race or ethnic
ity. I do not believe it is our role to make judgments about
which mixes of minority voters should count for purposes of
forming a majority in an electoral district, in the face of
factual findings that the district is an effective majority-
minority district. It is a sordid business, this divvying us up
by race. When a State’s plan already provides the maxi
mum possible number of majority-minority effective oppor
tunity districts, and the minority enjoys effective political
 Cite as: 548 U. S. ____ (2006) 21

Opinion of ROBERTS, C. J.

power in the area well in excess of its proportion of the
population, I would conclude that the courts have no further
role to play in rejiggering the district lines under §2.
I respectfully dissent from Part III of the Court’s opinion.
 Cite as: 548 U. S. ____ (2006) 1

Opinion of SCALIA, J.

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 05–204, 05–254, 05–276 and 05–439
_________________

LEAGUE OF UNITED LATIN AMERICAN CITIZENS,
ET AL., APPELLANTS
05–204 v.
RICK PERRY, GOVERNOR OF TEXAS, ET AL.

TRAVIS COUNTY, TEXAS, ET AL., APPELLANTS
05–254 v.
RICK PERRY, GOVERNOR OF TEXAS, ET AL.

EDDIE JACKSON, ET AL., APPELLANTS
05–276 v.
RICK PERRY, GOVERNOR OF TEXAS, ET AL.

GI FORUM OF TEXAS, ET AL., APPELLANTS
05–439 v.
RICK PERRY, GOVERNOR OF TEXAS, ET AL.
ON APPEALS FROM THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF TEXAS
[June 28, 2006]

JUSTICE SCALIA, with whom JUSTICE THOMAS joins, and
with whom THE CHIEF JUSTICE and JUSTICE ALITO join as
to Part III, concurring in the judgment in part and dis
senting in part.
I
As I have previously expressed, claims of unconstitu
tional partisan gerrymandering do not present a justicia
ble case or controversy. See Vieth v. Jubelirer, 541 U. S.
267, 271–306 (2004) (plurality opinion). JUSTICE KENNEDY’s
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Opinion of SCALIA, J.

discussion of appellants’ political-gerrymandering claims
ably demonstrates that, yet again, no party or judge has put
forth a judicially discernable standard by which to evaluate
them. See ante, at 6–16. Unfortunately, the opinion then
concludes that the appellants have failed to state a claim as
to political gerrymandering, without ever articulating what
the elements of such a claim consist of. That is not an
available disposition of this appeal. We must either con
clude that the claim is nonjusticiable and dismiss it, or else
set forth a standard and measure appellant’s claim against
it. Vieth, supra, at 301. Instead, we again dispose of this
claim in a way that provides no guidance to lower-court
judges and perpetuates a cause of action with no discernible
content. We should simply dismiss appellants’ claims as
nonjusticiable.
II
I would dismiss appellants’ vote-dilution claims prem
ised on §2 of the Voting Rights Act of 1965 for failure to
state a claim, for the reasons set forth in JUSTICE
THOMAS’s opinion, which I joined, in Holder v. Hall, 512
U. S. 874, 891–946 (1994) (opinion concurring in judg
ment). As THE CHIEF JUSTICE makes clear, see ante, p.
___ (opinion concurring in part, concurring in judgment in
part, and dissenting in part), the Court’s §2 jurisprudence
continues to drift ever further from the Act’s purpose of
ensuring minority voters equal electoral opportunities.
III
Because I find no merit in either of the claims addressed
by the Court, I must consider appellants’ race-based equal
protection claims. The GI Forum appellants focus on the
removal of 100,000 residents, most of whom are Latino,
from District 23. They assert that this action constituted
intentional vote dilution in violation of the Equal Protec
tion Clause. The Jackson appellants contend that the
 Cite as: 548 U. S. ____ (2006) 3

Opinion of SCALIA, J.

intentional creation of District 25 as a majority-minority
district was an impermissible racial gerrymander. The
District Court rejected the equal protection challenges to
both districts.
A
The GI Forum appellants contend that the Texas Legis
lature removed a large number of Latino voters living in
Webb County from District 23 with the purpose of dimin
ishing Latino electoral power in that district. Congres
sional redistricting is primarily a responsibility of state
legislatures, and legislative motives are often difficult to
discern. We presume, moreover, that legislatures fulfill
this responsibility in a constitutional manner. Although a
State will almost always be aware of racial demographics
when it redistricts, it does not follow from this awareness
that the State redistricted on the basis of race. See Miller
v. Johnson, 515 U. S. 900, 915–916 (1995). Thus, courts
must “exercise extraordinary caution” in concluding that a
State has intentionally used race when redistricting. Id.,
at 916. Nevertheless, when considerations of race pre
dominate, we do not hesitate to apply the strict scrutiny
that the Equal Protection Clause requires. See, e.g., Shaw
v. Hunt, 517 U. S. 899, 908 (1996) (Shaw II); Miller, supra,
at 920.
At the time the legislature redrew Texas’s congressional
districts, District 23 was represented by Congressman
Henry Bonilla, whose margin of victory and support
among Latinos had been steadily eroding. See Session v.
Perry, 298 F. Supp. 2d 451, 488–489 (ED Tex. 2004) (per
curiam). In the 2002 election, he won with less than 52
percent of the vote, ante, at 17 (opinion of the Court), and
received only 8 percent of the Latino vote, Session, 298
F. Supp. 2d, at 488. The District Court found that the goal
of the map-drawers was to adjust the lines of that district
to protect the imperiled incumbent: “The record presents
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Opinion of SCALIA, J.

undisputed evidence that the Legislature desired to in
crease the number of Republican votes cast in Congres
sional District 23 to shore up Bonilla’s base and assist in
his reelection.” Ibid. To achieve this goal, the legislature
extended the district north to include counties in the
central part of the State with residents who voted Repub
lican, adding 100,000 people to the district. Then, to
comply with the one-person, one-vote requirement, the
legislature took one-half of heavily Democratic Webb
County, in the southern part of the district, and included
it in the neighboring district. Id., at 488–489.
Appellants acknowledge that the State redrew District
23 at least in part to protect Bonilla. They argue, how
ever, that they assert an intentional vote-dilution claim
that is analytically distinct from the racial-
gerrymandering claim of the sort at issue in Shaw v. Reno,
509 U. S. 630, 642–649 (1993) (Shaw I). A vote-dilution
claim focuses on the majority’s intent to harm a minority’s
voting power; a Shaw I claim focuses instead on the
State’s purposeful classification of individuals by their
race, regardless of whether they are helped or hurt. Id., at
651–652 (distinguishing the vote-dilution claim in United
Jewish Organizations of Williamsburgh, Inc. v. Carey, 430
U. S. 144 (1977)). In contrast to a Shaw I claim, appel
lants contend, in a vote-dilution claim the plaintiff need
not show that the racially discriminatory motivation
predominated, but only that the invidious purpose was a
motivating factor. Appellants contrast Easley v. Cromar
tie, 532 U. S. 234, 241 (2001) (in a racial-gerrymandering
claim, “[r]ace must not simply have been a motivation for
the drawing of a majority-minority district, but the pre
dominant factor motivating the legislature’s districting
decision” (citation and internal quotation marks omitted)),
with Arlington Heights v. Metropolitan Housing Develop
ment Corp., 429 U. S. 252, 265–266 (1977), and Rogers v.
Lodge, 458 U. S. 613, 617 (1982). Whatever the validity of
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Opinion of SCALIA, J.

this distinction, on the facts of these cases it is irrelevant.
The District Court’s conclusion that the legislature was
not racially motivated when it drew the plan as a whole,
Session, 298 F. Supp. 2d, at 473, and when it split Webb
County, id., at 509, dooms appellants’ intentional-vote
dilution claim.
We review a district court’s factual finding of a legisla
ture’s motivation for clear error. See Easley, supra, at
242. We will not overturn that conclusion unless we are
“ ‘left with the definite and firm conviction that a mistake
has been committed.’ ” Anderson v. Bessemer City, 470
U. S. 564, 573 (1985) (quoting United States v. United
States Gypsum Co., 333 U. S. 364, 395 (1948)). I cannot
say that the District Court clearly erred when it found
that “[t]he legislative motivation for the division of Webb
County between Congressional District 23 and Congres
sional District 28 in Plan 1374C was political.” Session,
298 F. Supp. 2d, at 509.
Appellants contend that the District Court had evidence
of the State’s intent to minimize Latino voting power.
They note, for instance, that the percentage of Latinos in
District 23’s citizen voting-age population decreased sig
nificantly as a result of redistricting and that only 8 per
cent of Latinos had voted for Bonilla in the last election.
They also point to testimony indicating that the legisla
ture was conscious that protecting Bonilla would result in
the removal of Latinos from the district and was pleased
that, even after redistricting, he would represent a district
in which a slight majority of voting-age residents was
Latino. Of the individuals removed from District 23, 90
percent of those of voting age were Latinos, and 87 percent
voted for Democrats in 2002. Id., at 489. The District
Court concluded that these individuals were removed
because they voted for Democrats and against Bonilla, not
because they were Latino. Id., at 473, 508–510. This
finding is entirely in accord with our case law, which has
6 LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.

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Opinion of SCALIA, J.

recognized that “a jurisdiction may engage in constitu
tional political gerrymandering, even if it so happens that
the most loyal Democrats happen to be black Democrats
and even if the State were conscious of that fact.” Hunt v.
Cromartie, 526 U. S. 541, 551 (1999). See also Bush v.
Vera, 517 U. S. 952, 968 (1996) (plurality opinion) (“If
district lines merely correlate with race because they are
drawn on the basis of political affiliation, which correlates
with race, there is no racial classification to justify”).1
Appellants argue that in evaluating the State’s stated
motivation, the District Court improperly conflated race
and political affiliation by failing to recognize that the
individuals moved were not Democrats, they just voted
against Bonilla. But the District Court found that the
State’s purpose was to protect Bonilla, and not just to
create a safe Republican district. The fact that the redis
tricted residents voted against Bonilla (regardless of how
they voted in other races) is entirely consistent with the
legislature’s political and nonracial objective.
I cannot find, under the clear error standard, that the
District Court was required to reach a different conclu
sion. See Hunt, supra, at 551. “Discriminatory purpose
. . . implies more than intent as volition or intent as
awareness of consequences. It implies that the decision-
maker . . . selected or reaffirmed a particular course of
action at least in part ‘because of,’ not merely ‘in spite of,’
its adverse effects upon an identifiable group.” Personnel
——————
1 The District Court did not find that the legislature had two motiva

tions in dividing Webb County, one invidious and the other political, and
that the political one predominated. Rather, it accepted the State’s
explanation that although the individuals moved were largely Latino,
they were moved because they voted for Democrats and against Bonilla.
For this reason, appellants’ argument that incumbent protection cannot
be a compelling state interest is off the mark. The District Court found
that incumbent protection, not race, lay behind the redistricting of
District 23. Strict scrutiny therefore does not apply, and the existence
vel non of a compelling state interest is irrelevant.
 Cite as: 548 U. S. ____ (2006) 7

Opinion of SCALIA, J.

Administrator of Mass. v. Feeney, 442 U. S. 256, 279
(1979) (citation, some internal quotation marks, and foot
note omitted). The District Court cited ample evidence
supporting its finding that the State did not remove Lati
nos from the district because they were Latinos: The new
District 23 is more compact than it was under the old
plan, see Session, 298 F. Supp. 2d, at 506, the division of
Webb County simply followed the interstate highway, id.,
at 509–510, and the district’s “lines did not make twists,
turns, or jumps that can be explained only as efforts to
include Hispanics or exclude Anglos, or vice-versa,” id., at
511. Although appellants put forth alternative redistrict
ing scenarios that would have protected Bonilla, the Dis
trict Court noted that these alternatives would not have
furthered the legislature’s goal of increasing the number of
Republicans elected statewide. Id., at 497. See Miller,
515 U. S., at 915 (“Electoral districting is a most difficult
subject for legislatures, and so the States must have dis
cretion to exercise the political judgment necessary to
balance competing interests”). Nor is the District Court’s
finding at all impugned by the fact that certain legislators
were pleased that Bonilla would continue to represent a
nominally Latino-majority district.
The ultimate inquiry, as in all cases under the Equal
Protection Clause, goes to the State’s purpose, not simply
to the effect of state action. See Washington v. Davis, 426
U. S. 229, 238–241 (1976). Although it is true that the
effect of an action can support an inference of intent, see
id., at 242, there is ample evidence here to overcome any
such inference and to support the State’s political explana
tion. The District Court did not commit clear error by
accepting it.
B
The District Court’s finding with respect to District 25 is
another matter. There, too, the District Court applied the
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Opinion of SCALIA, J.

approach set forth in Easley, in which the Court held that
race may be a motivation in redistricting as long as it is
not the predominant one. 532 U. S., at 241. See also
Bush, 517 U. S., at 993 (O’Connor, J., concurring) (“[S]o
long as they do not subordinate traditional districting
criteria to the use of race for its own sake or as a proxy,
States may intentionally create majority-minority dis
tricts, and may otherwise take race into consideration,
without coming under strict scrutiny”). In my view, how
ever, when a legislature intentionally creates a majority-
minority district, race is necessarily its predominant
motivation and strict scrutiny is therefore triggered. See
id., at 999–1003 (THOMAS, J., joined by SCALIA, J., concur
ring in judgment). As in Bush, id., at 1002, the State’s
concession here sufficiently establishes that the legisla
ture classified individuals on the basis of their race when
it drew District 25: “[T]o avoid retrogression and achieve
compliance with §5 of the Voting Rights Act . . . , the
Legislature chose to create a new Hispanic-opportunity
district—new CD 25—which would allow Hispanics to
actually elect its candidate of choice.” Brief for State
Appellees 106. The District Court similarly found that
“the Legislature clearly intended to create a majority
Latino citizen voting age population district in Congres
sional District 25.” Session, supra, at 511. Unquestiona
bly, in my view, the drawing of District 25 triggers strict
scrutiny.
Texas must therefore show that its use of race was
narrowly tailored to further a compelling state interest.
See Shaw II, 517 U. S., at 908. Texas asserts that it cre
ated District 25 to comply with its obligations under §5 of
the Voting Rights Act. Brief for State Appellees 105–106.
That provision forbids a covered jurisdiction to promulgate
any “standard, practice, or procedure” unless it “does not
have the purpose and will not have the effect of denying or
abridging the right to vote on account of race.” 42 U. S. C.
 Cite as: 548 U. S. ____ (2006) 9

Opinion of SCALIA, J.

§1973c. The purpose of §5 is to prevent “retrogression in
the position of racial minorities with respect to their effec
tive exercise of the electoral franchise.” Beer v. United
States, 425 U. S. 130, 141 (1976). Since its changes to
District 23 had reduced Latino voting power in that dis
trict, Texas asserts that it needed to create District 25 as a
Latino-opportunity district in order to avoid §5 liability.
We have in the past left undecided whether compliance
with federal antidiscrimination laws can be a compelling
state interest. See Miller, supra, at 921; Shaw II, supra,
at 911. I would hold that compliance with §5 of the Voting
Rights Act can be such an interest. We long ago upheld
the constitutionality of §5 as a proper exercise of Con
gress’s authority under §2 of the Fifteenth Amendment to
enforce that Amendment’s prohibition on the denial or
abridgment of the right to vote. See South Carolina v.
Katzenbach, 383 U. S. 301 (1966). If compliance with §5
were not a compelling state interest, then a State could be
placed in the impossible position of having to choose be
tween compliance with §5 and compliance with the Equal
Protection Clause. Moreover, the compelling nature of the
State’s interest in §5 compliance is supported by our rec
ognition in previous cases that race may be used where
necessary to remedy identified past discrimination. See,
e.g., Shaw II, supra, at 909 (citing Richmond v. J. A.
Croson Co., 488 U. S. 469, 498–506 (1989). Congress
enacted §5 for just that purpose, see Katzenbach, supra, at
309; Beer, supra, at 140–141, and that provision applies
only to jurisdictions with a history of official discrimina
tion, see 42 U. S. C. §§1973b(b), 1973c; Vera v. Richards,
861 F. Supp. 1304, 1317 (SD Tex. 1994) (recounting that,
because of its history of racial discrimination, Texas be
came a jurisdiction covered by §5 in 1975). In the proper
case, therefore, a covered jurisdiction may have a compel
ling interest in complying with §5.
To support its use of §5 compliance as a compelling
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Opinion of SCALIA, J.

interest with respect to a particular redistricting decision,
the State must demonstrate that such compliance was its
“ ‘actual purpose’ ” and that it had “ ‘a strong basis in evi
dence’ for believing,” Shaw II, supra, at 908–909, n. 4
(citations omitted), that the redistricting decision at issue
was “reasonably necessary under a constitutional reading
and application of” the Act, Miller, 515 U. S., at 921.2
Moreover, in order to tailor the use of race narrowly to its
purpose of complying with the Act, a State cannot use
racial considerations to achieve results beyond those that
are required to comply with the statute. See id., at 926
(rejecting the Department of Justice’s policy that maximi
zation of minority districts was required by §5 and thus
that this policy could serve as a compelling state interest).
Section 5 forbids a State to take action that would worsen
minorities’ electoral opportunities; it does not require
action that would improve them.
In determining whether a redistricting decision was
reasonably necessary, a court must bear in mind that a
State is permitted great flexibility in deciding how to
comply with §5’s mandate. See Georgia v. Ashcroft, 539
U. S. 461, 479–483 (2003). For instance, we have recog
nized that §5 does not constrain a State’s choice between
creating majority-minority districts or minority-influence
districts. Id., at 480–483. And we have emphasized that,
in determining whether a State has impaired a minority’s
“effective exercise of the electoral franchise,” a court
should look to the totality of the circumstances statewide.
These circumstances include the ability of a minority
group “to elect a candidate of its choice” or “to participate
in the political process,” the positions of legislative leader
ship held by individuals representing minority districts,
——————
2 No party here raises a constitutional challenge to §5 as applied

in these cases, and I assume its application is consistent with the
Constitution.
 Cite as: 548 U. S. ____ (2006) 11

Opinion of SCALIA, J.

and support for the new plan by the representatives previ
ously elected from these districts. Id., at 479–485.
In light of these many factors bearing upon the question
whether the State had a strong evidentiary basis for be
lieving that the creation of District 25 was reasonably
necessary to comply with §5, I would normally remand for
the District Court to undertake that “fact-intensive” in
quiry. See id., at 484, 490. Appellants concede, however,
that the changes made to District 23 “necessitated creat
ing an additional effective Latino district elsewhere, in an
attempt to avoid Voting Rights Act liability.” Brief for
Appellant Jackson et al. in No. 05–276, p. 44. This is, of
course, precisely the State’s position. Brief for State Ap
pellees 105–106. Nor do appellants charge that in creat
ing District 25 the State did more than what was required
by §5.3 In light of these concessions, I do not believe a
remand is necessary, and I would affirm the judgment of
the District Court.

——————
3 Appellants argue that in Bush v. Vera, 517 U. S. 952 (1996), we did

not allow the purpose of incumbency protection in one district to justify
the use of race in a neighboring district. That is not so. What we held
in Bush was that the District Court had not clearly erred in concluding
that, although the State had political incumbent-protection purposes as
well, its use of race predominated. See id., at 969 (plurality opinion).
We then applied strict scrutiny, as I do here. But we said nothing more
about incumbency protection as part of that analysis. Rather, we
rejected the State’s argument that compliance with §5 was a compelling
interest because the State had gone beyond mere nonretrogression. Id.,
at 983; id., at, 1003 (THOMAS, J., joined by SCALIA, J, concurring in
judgment).