Davis v. Bandemer, 478 U.S. 109 (1986)
Davis v. Bandemer, 478 U.S. 109 (1986)
109
106 S.Ct. 2797
92 L.Ed.2d 85
Syllabus
The Indiana Legislature consists of a 100-member House of
Representatives and a 50-member Senate. Representatives serve 2-year
terms, with elections for all seats every two years. Senators serve 4-year
terms, with half of the seats up for election every two years. Senators are
elected from single-member districts, while representatives are elected
from a mixture of single-member and multimember districts. In 1981, the
legislature reapportioned the districts pursuant to the 1980 census. At that
time, there were Republican majorities in both the House and the Senate.
The reapportionment plan provided 50 single-member districts for the
Senate and 7 triple-member, 9 double-member, and 61 single-member
districts for the House. The multimember districts generally included the
State's metropolitan areas. In 1982, appellee Indiana Democrats filed suit
in Federal District Court against appellant state officials, alleging that the
1981 reapportionment plan constituted a political gerrymander intended to
disadvantage Democrats, and that the particular district lines that were
drawn and the mix of single-member and multimember districts were
intended to and did violate their right, as Democrats, to equal protection
under the Fourteenth Amendment. In November 1982, before the case
went to trial, elections were held under the new plan. Democratic
candidates for the House received 51.9% of votes cast statewide but only
43 out of the 100 seats to be filled. Democratic candidates for the Senate
received 53.1% of the votes cast statewide, and 13 out of the 25
Democratic candidates were elected. In Marion and Allen Counties, both
divided into multi-member House districts, Democratic candidates drew
46.6% of the vote, but only 3 of the 21 Democratic candidates were
In early 1981, the General Assembly initiated the process of reapportioning the
State's legislative districts pursuant to the 1980 census. At this time, there were
Republican majorities in both the House and the Senate, and the Governor was
Republican.1 Bills were introduced in both Houses, and a reapportionment plan
was duly passed and approved by the Governor.2 This plan provided 50 singlemember districts for the Senate; for the House, it provided 7 triple-member, 9
double-member, and 61 single-member districts. In the Senate plan, the
population deviation between districts was 1.15%; in the House plan, the
deviation was 1.05%. The multimember districts generally included the more
metropolitan areas of the State, although not every metropolitan area was in a
multimember district. Marion County, which includes Indianapolis, was
combined with portions of its neighboring counties to form five triple-member
districts. Fort Wayne was divided into two parts, and each part was combined
with portions of the surrounding county or counties to make two triple-member
districts. On the other hand, South Bend was divided and put partly into a
double-member district and partly into a single-member district (each part
combined with part of the surrounding county or counties). Although county
and city lines were not consistently followed, township lines generally were.
The two plans, the Senate and the House, were not nested; that is, each Senate
district was not divided exactly into two House districts. There appears to have
been little relation between the lines drawn in the two plans.
4
In early 1982, this suit was filed by several Indiana Democrats (here the
appellees) against various state officials (here the appellants), alleging that the
1981 reapportionment plans constituted a political gerrymander intended to
disadvantage Democrats. Specifically, they contended that the particular district
lines that were drawn and the mix of single-member and multimember districts
were intended to and did violate their right, as Democrats, to equal protection
under the Fourteenth Amendment. A three-judge District Court was convened
to hear these claims.
In November 1982, before the case went to trial, elections were held under the
new districting plan. All of the House seats and half of the Senate seats were up
for election. Over all the House races statewide, Democratic candidates
received 51.9% of the vote. Only 43 Democrats, however, were elected to the
House. Over all the Senate races statewide, Democratic candidates received
53.1% of the vote. Thirteen (of twenty-five) Democrats were elected. In Marion
and Allen Counties, both divided into multi-member House districts,
Democratic candidates drew 46.6% of the vote, but only 3 of the 21 House
seats were filled by Democrats.
On December 13, 1984, a divided District Court issued a decision declaring the
reapportionment to be unconstitutional, enjoining the appellants from holding
elections pursuant to the 1981 redistricting, ordering the General Assembly to
prepare a new plan, and retaining jurisdiction over the case. See 603 F.Supp.
1479.
To the District Court majority, the results of the 1982 elections seemed "to
support an argument that there is a built-in bias favoring the majority party, the
Republicans, which instituted the reapportionment plan." Id., at 1486. Although
the court thought that these figures were unreliable predictors of future
elections, it concluded that they warranted further examination of the
circumstances surrounding the passage of the reapportionment statute. See
ibid.3 In the course of this further examination, the court noted the irregular
shape of some district lines, the peculiar mix of single-member and
multimember districts,4 and the failure of the district lines to adhere
consistently to political subdivision boundaries to define communities of
interest. The court also found inadequate the other explanations given for the
configuration of the districts, such as adherence to the one person, one vote
imperative and the Voting Rights Act's no retrogression requirement. These
factors, concluded the court, evidenced an intentional effort to favor
Republican incumbents and candidates and to disadvantage Democratic voters.5
This was achieved by "stacking" Democrats into districts with large Democratic
majorities and "splitting" them in other districts so as to give Republicans safe
but not excessive majorities in those districts.6 Because the 1982 elections
indicated that the plan also had a discriminatory effect in that the proportionate
voting influence of Democratic voters had been adversely affected and because
any scheme "which purposely inhibit[s] or prevent[s] proportional
representation cannot be tolerated," id., at 1492, the District Court invalidated
the statute.7
8
The defendants appealed, seeking review of the District Court's rulings that the
case was justiciable and that, if justiciable, an equal protection violation had
occurred.8 We noted probable jurisdiction. 470 U.S. 1083, 105 S.Ct. 1840, 85
L.Ed.2d 140 (1985).
II
9
A.
10
Since Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), we
have consistently adjudicated equal protection claims in the legislative
districting context regarding inequalities in population between districts. In the
course of these cases, we have developed and enforced the "one person, one
vote" principle. See, e.g., Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12
L.Ed.2d 506 (1964).
11
Our past decisions also make clear that even where there is no population
deviation among the districts, racial gerrymandering presents a justiciable equal
protection claim. In the multimember district context, we have reviewed, and
on occasion rejected, districting plans that unconstitutionally diminished the
effectiveness of the votes of racial minorities. See Rogers v. Lodge, 458 U.S.
613, 102 S.Ct. 3272, 73 L.Ed.2d 1012 (1982); Mobile v. Bolden, 446 U.S. 55,
100 S.Ct. 1490, 64 L.Ed.2d 47 (1980); White v. Regester, 412 U.S. 755, 93
S.Ct. 2332, 37 L.Ed.2d 314 (1973); Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct.
1858, 29 L.Ed.2d 363 (1971); Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286,
16 L.Ed.2d 376 (1966); Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13
L.Ed.2d 401 (1965). We have also adjudicated claims that the configuration of
single-member districts violated equal protection with respect to racial and
ethnic minorities, although we have never struck down an apportionment plan
because of such a claim. See United Jewish Organizations of Williamsburgh,
Inc. v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977); Wright v.
Rockefeller, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512 (1964).
12
13
In the years since Baker v. Carr, both before and after Gaffney, however, we
have also affirmed a number of decisions in which the lower courts rejected the
justiciability of purely political gerrymandering claims. In WMCA, Inc. v.
Lomenzo, 382 U.S. 4, 86 S.Ct. 24, 15 L.Ed.2d 2 (1965), summarily aff'g 238
F.Supp. 916 (SDNY), the most frequently cited of these cases, we affirmed the
decision of a three-judge District Court upholding a temporary apportionment
plan for the State of New York. The District Court had determined that political
gerrymandering equal protection challenges to this plan were nonjusticiable.
See id., at 925-926. Justice Harlan, in his opinion concurring in the Court's
summary affirmance, expressed his understanding that the affirmance was
based on the Court's approval of the lower court's finding of nonjusticiability.
See 382 U.S., at 6, 86 S.Ct., at 26. See also Jimenez v. Hidalgo County Water
Improvement District No. 2, 424 U.S. 950, 96 S.Ct. 1423, 47 L.Ed.2d 357
(1976), summarily aff'g 68 F.R.D. 668 (SD Tex.1975); Ferrell v. Hall, 406 U.S.
939, 92 S.Ct. 2045, 32 L.Ed.2d 328 (1972), summarily aff'g 339 F.Supp. 73
(WD Okla.); Wells v. Rockefeller, 398 U.S. 901, 90 S.Ct. 1696, 26 L.Ed.2d 60
(1970), summarily aff'g 311 F.Supp. 48 (SDNY). Although these summary
affirmances arguably support an inference that these claims are not justiciable,
there are other cases in which federal or state courts adjudicated political
gerrymandering claims and we summarily affirmed or dismissed for want of a
substantial federal question. See, e.g., Wiser v. Hughes, 459 U.S. 962, 103 S.Ct.
286, 74 L.Ed.2d 272 (1982), dismissing for want of a substantial federal
question an appeal from In re Legislative Districting, 299 Md. 658, 475 A.2d
428; Kelly v. Bumpers, 413 U.S. 901, 93 S.Ct. 3047, 37 L.Ed.2d 1019 (1973),
summarily aff'g 340 F.Supp. 568 (ED Ark.1972); Archer v. Smith, 409 U.S.
808, 93 S.Ct. 62, 34 L.Ed.2d 68 (1972), summarily aff'g Graves v. Barnes, 343
F.Supp. 704, 734 (WD Tex.).
14
These sets of cases may look in different directions, but to the extent that our
summary affirmances indicate the nonjusticiability of political gerrymander
cases, we are not bound by those decisions. As we have observed before, "[i]t
is not at all unusual for the Court to find it appropriate to give full consideration
to a question that has been the subject of previous summary action."
Washington v. Yakima Indian Nation, 439 U.S. 463, 477, n. 20, 99 S.Ct. 740,
749, n. 20, 58 L.Ed.2d 740 (1979). See also Edelman v. Jordan, 415 U.S. 651,
670-671, 94 S.Ct. 1347, 1359-1360, 39 L.Ed.2d 662 (1974). The issue that the
appellants would have us find to be precluded by these summary dispositions is
an important one, and it deserves further consideration.
B
15
The outlines of the political question doctrine were described and to a large
extent defined in Baker v. Carr. The synthesis of that effort is found in the
following passage in the Court's opinion:
16
"It is apparent that several formulations which vary slightly according to the
settings in which the questions arise may describe a political question, although
each has one or more elements which identify it as essentially a function of the
separation of powers. Prominent on the surface of any case held to involve a
political question is found a textually demonstrable constitutional commitment
of the issue to a coordinate political department; or a lack of judicially
discoverable and manageable standards for resolving it; or the impossibility of
deciding without an initial policy determination of a kind clearly for nonjudicial
discretion; or the impossibility of a court's undertaking independent resolution
without expressing lack of the respect due coordinate branches of government;
or an unusual need for unquestioning adherence to a political decision already
"Unless one of these formulations is inextricable from the case at bar, there
should be no dismissal for nonjusticiability on the ground of a political
question's presence. The doctrine of which we treat is one of 'political
questions,' not one of 'political cases.' The courts cannot reject as 'no law suit' a
bona fide controversy as to whether some action denominated 'political'
exceeds constitutional authority. The cases we have reviewed show the
necessity for discriminating inquiry into the precise facts and posture of the
particular case, and the impossibility of resolution by any semantic
cataloguing." 369 U.S., at 217, 82 S.Ct., at 710.
18
In Baker, the Court applied this analysis to an equal protection claim based on a
state legislative apportionment that allowed substantial disparities in the
number of voters represented by each state representative. See id., at 253-258,
82 S.Ct., at 729-732 (Clark, J., concurring). In holding that claim to be
justiciable, the Court concluded that none of the identifying characteristics of a
political question were present:
19
"The question here is the consistency of state action with the Federal
Constitution. We have no question decided, or to be decided, by a political
branch of government coequal with this Court. Nor do we risk embarrassment
of our government abroad, or grave disturbance at home if we take issue with
Tennessee as to the constitutionality of her action here challenged. Nor need the
appellants, in order to succeed in this action, ask the Court to enter upon policy
determinations for which judicially manageable standards are lacking. Judicial
standards under the Equal Protection Clause are well developed and familiar,
and it has been open to courts since the enactment of the Fourteenth
Amendment to determine, if on the particular facts they must, that a
discrimination reflects no policy, but simply arbitrary and capricious action."
Id., at 226, 84 S.Ct., at 715.
20
This analysis applies equally to the question now before us. Disposition of this
question does not involve us in a matter more properly decided by a coequal
branch of our Government. There is no risk of foreign or domestic disturbance,
and in light of our cases since Baker we are not persuaded that there are no
judicially discernible and manageable standards by which political gerrymander
cases are to be decided.
21
It is true that the type of claim that was presented in Baker v. Carr was
subsequently resolved in this Court by the formulation of the "one person, one
vote" rule. See, e.g., Reynolds v. Sims, 377 U.S., at 557-561, 84 S.Ct., at 13791381. The mere fact, however, that we may not now similarly perceive a likely
arithmetic presumption in the instant context does not compel a conclusion that
the claims presented here are nonjusticiable. The one person, one vote principle
had not yet been developed when Baker was decided. At that time, the Court
did not rely on the potential for such a rule in finding justiciability. Instead, as
the language quoted above clearly indicates, the Court contemplated simply
that legislative line drawing in the districting context would be susceptible of
adjudication under the applicable constitutional criteria.
22
Furthermore, in formulating the one person, one vote formula, the Court
characterized the question posed by election districts of disparate size as an
issue of fair representation. In such cases, it is not that anyone is deprived of a
vote or that any person's vote is not counted. Rather, it is that one electoral
district elects a single representative and another district of the same size elects
two or morethe elector's vote in the former district having less weight in the
sense that he may vote for and his district be represented by only one legislator,
while his neighbor in the adjoining district votes for and is represented by two
or more. Reynolds accordingly observed:
23
"Since the achieving of fair and effective representation for all citizens is
concededly the basic aim of legislative apportionment, we conclude that the
Equal Protection Clause guarantees the opportunity for equal participation by
all voters in the election of State legislators. Diluting the weight of votes
because of place of residence impairs basic constitutional rights under the
Fourteenth Amendment just as much as invidious discriminations based upon
factors such as race. . . ." 377 U.S., at 565-566, 84 S.Ct., at 1383-1384.
24
25
The issue here is of course different from that adjudicated in Reynolds. It does
not concern districts of unequal size. Not only does everyone have the right to
vote and to have his vote counted, but each elector may vote for and be
represented by the same number of lawmakers. Rather, the claim is that each
political group in a State should have the same chance to elect representatives
of its choice as any other political group. Nevertheless, the issue is one of
representation, and we decline to hold that such claims are never justiciable.
26
28
29
III
30
A.
31
Preliminarily, we agree with the District Court that the claim made by the
appellees in this case is a claim that the 1981 apportionment discriminates
against Democrats on a statewide basis. Both the appellees and the District
Court have cited instances of individual districting within the State which they
believe exemplify this discrimination, but the appellees' claim, as we
understand it, is that Democratic voters over the State as a whole, not
Democratic voters in particular districts, have been subjected to
unconstitutional discrimination. See, e.g., Complaint of Bandemer Plaintiffs 37. Although the statewide discrimination asserted here was allegedly
accomplished through the manipulation of individual district lines, the focus of
the equal protection inquiry is necessarily somewhat different from that
involved in the review of individual districts.
32
We also agree with the District Court that in order to succeed the Bandemer
plaintiffs were required to prove both intentional discrimination against an
identifiable political group and an actual discriminatory effect on that group.
See, e.g., Mobile v. Bolden, 446 U.S., at 67-68, 100 S.Ct., at 1499-1500.
Further, we are confident that if the law challenged here had discriminatory
effects on Democrats, this record would support a finding that the
discrimination was intentional. Thus, we decline to overturn the District Court's
finding of discriminatory intent as clearly erroneous.
33
Indeed, quite aside from the anecdotal evidence, the shape of the House and
Senate Districts, and the alleged disregard for political boundaries, we think it
most likely that whenever a legislature redistricts, those responsible for the
legislation will know the likely political composition of the new districts and
will have a prediction as to whether a particular district is a safe one for a
Democratic or Republican candidate or is a competitive district that either
candidate might win. As we said in Gaffney v. Cummings, 412 U.S., at 752-753,
93 S.Ct., at 2331-2332:
34
"It would be idle, we think, to contend that any political consideration taken
into account in fashioning a reapportionment plan is sufficient to invalidate it.
Our cases indicate quite the contrary. See White v. Regester, [412 U.S. 755, 93
S.Ct. 2332, 37 L.Ed.2d 314 (1973) ]; Burns v. Richardson, [384 U.S. 73, 86
S.Ct. 1286, 16 L.Ed.2d 376 (1966) ]; Whitcomb v. Chavis, [403 U.S. 124, 91
S.Ct. 1858, 29 L.Ed.2d 363 (1971) ]; Abate v. Mundt, [403 U.S. 182, 91 S.Ct.
1904, 29 L.Ed.2d 399 (1971) ]. The very essence of districting is to produce a
differenta more 'politically fair'result than would be reached with elections
at large, in which the winning party would take 100% of the legislative seats.
Politics and political considerations are inseparable from districting and
apportionment. The political profile of a State, its party registration, and voting
records are available precinct by precinct, ward by ward. These subdivisions
may not be identical with census tracts, but, when overlaid on a census map, it
requires no special genius to recognize the political consequences of drawing a
district line along one street rather than another. It is not only obvious, but
absolutely unavoidable, that the location and shape of districts may well
determine the political complexion of the area. District lines are rarely neutral
phenomena. They can well determine what district will be predominantly
Democratic or predominantly Republican, or make a close race likely.
Redistricting may pit incumbents against one another or make very difficult the
election of the most experienced legislator. The reality is that districting
inevitably has and is intended to have substantial political consequences.
35
"It may be suggested that those who redistrict and reapportion should work
with census, not political, data and achieve population equality without regard
for political impact. But this politically mindless approach may produce,
whether intended or not, the most grossly gerrymandered results; and, in any
event, it is most unlikely that the political impact of such a plan would remain
undiscovered by the time it was proposed or adopted, in which event the results
would be both known and, if not changed, intended."10
36
B
37
We do not accept, however, the District Court's legal and factual bases for
concluding that the 1981 Act visited a sufficiently adverse effect on the
appellees' constitutionally protected rights to make out a violation of the Equal
Protection Clause. The District Court held that because any apportionment
scheme that purposely prevents proportional representation is unconstitutional,
Democratic voters need only show that their proportionate voting influence has
been adversely affected. 603 F.Supp., at 1492. Our cases, however, clearly
foreclose any claim that the Constitution requires proportional representation or
that legislatures in reapportioning must draw district lines to come as near as
possible to allocating seats to the contending parties in proportion to what their
anticipated statewide vote will be. Whitcomb v. Chavis, 403 U.S., at 153, 156,
160, 91 S.Ct., at 1874, 1876, 1878; White v. Regester, 412 U.S., at 765-766, 93
S.Ct., at 2339-2340.
38
The typical election for legislative seats in the United States is conducted in
described geographical districts, with the candidate receiving the most votes in
each district winning the seat allocated to that district. If all or most of the
districts are competitivedefined by the District Court in this case as districts
in which the anticipated split in the party vote is within the range of 45% to
55%even a narrow statewide preference for either party would produce an
overwhelming majority for the winning party in the state legislature. This
consequence, however, is inherent in winner-take-all, district-based elections,
and we cannot hold that such a reapportionment law would violate the Equal
Protection Clause because the voters in the losing party do not have
representation in the legislature in proportion to the statewide vote received by
their party candidates. As we have said: "[W]e are unprepared to hold that
district-based elections decided by plurality vote are unconstitutional in either
single- or multi-member districts simply because the supporters of losing
candidates have no legislative seats assigned to them." Whitcomb v. Chavis,
supra, 403 U.S., at 160, 91 S.Ct., at 1878. This is true of a racial as well as a
political group. White v. Regester, supra, 412 U.S., at 765-766, 93 S.Ct., at
2339-2340. It is also true of a statewide claim as well as an individual district
claim.
39
To draw district lines to maximize the representation of each major party would
require creating as many safe seats for each party as the demographic and
predicted political characteristics of the State would permit. This in turn would
leave the minority in each safe district without a representative of its choice.
We upheld this "political fairness" approach in Gaffney v. Cummings, despite
its tendency to deny safe district minorities any realistic chance to elect their
own representatives. But Gaffney in no way suggested that the Constitution
requires the approach that Connecticut had adopted in that case.
40
41
These holdings rest on a conviction that the mere fact that a particular
apportionment scheme makes it more difficult for a particular group in a
particular district to elect the representatives of its choice does not render that
scheme constitutionally infirm. This conviction, in turn, stems from a
perception that the power to influence the political process is not limited to
winning elections. An individual or a group of individuals who votes for a
losing candidate is usually deemed to be adequately represented by the winning
candidate and to have as much opportunity to influence that candidate as other
voters in the district. We cannot presume in such a situation, without actual
proof to the contrary, that the candidate elected will entirely ignore the interests
of those voters. This is true even in a safe district where the losing group loses
election after election. Thus, a group's electoral power is not unconstitutionally
diminished by the simple fact of an apportionment scheme that makes winning
43
44
Based on these views, we would reject the District Court's apparent holding
that any interference with an opportunity to elect a representative of one's
choice would be sufficient to allege or make out an equal protection violation,
unless justified by some acceptable state interest that the State would be
required to demonstrate. In addition to being contrary to the above-described
conception of an unconstitutional political gerrymander, such a low threshold
for legal action would invite attack on all or almost all reapportionment
statutes. District-based elections hardly ever produce a perfect fit between votes
and representation. The one-person, one-vote imperative often mandates
departure from this result as does the no-retrogression rule required by 5 of
the Voting Rights Act. Inviting attack on minor departures from some supposed
norm would too much embroil the judiciary in second-guessing what has
consistently been referred to as a political task for the legislature, a task that
should not be monitored too closely unless the express or tacit goal is to effect
its removal from legislative halls. We decline to take a major step toward that
end, which would be so much at odds with our history and experience.
45
C
46
The District Court's findings do not satisfy this threshold condition to stating
and proving a cause of action. In reaching its conclusion, the District Court
relied primarily on the results of the 1982 elections: Democratic candidates for
the State House of Representatives had received 51.9% of the votes cast
statewide and Republican candidates 48.1%; yet, out of the 100 seats to be
filled, Republican candidates won 57 and Democrats 43. In the Senate, 53.1%
of the votes were cast for Democratic candidates and 46.9% for Republicans; of
the 25 Senate seats to be filled, Republicans won 12 and Democrats 13. The
court also relied upon the use of multimember districts in Marion and Allen
Counties, where Democrats or those inclined to vote Democratic in 1982
amounted to 46.6% of the population of those counties but Republicans won
86%18 of 21seats allocated to the districts in those counties. These
disparities were enough to require a neutral justification by the State, which in
the eyes of the District Court was not forthcoming. 15
47
Democratic vote would have had to increase to control either the House or the
Senate. The appellants argue here, without a persuasive response from the
appellees, that had the Democratic candidates received an additional few
percentage points of the votes cast statewide, they would have obtained a
majority of the seats in both houses. Nor was there any finding that the 1981
reapportionment would consign the Democrats to a minority status in the
Assembly throughout the 1980's or that the Democrats would have no hope of
doing any better in the reapportionment that would occur after the 1990 census.
Without findings of this nature, the District Court erred in concluding that the
1981 Act violated the Equal Protection Clause.
48
49
D
51
52
Although we are not completely clear as to the distinction between these two
categories of gerrymander, the crux of Justice POWELL's analysis seems to be
thatat least in some casesthe intentional drawing of district boundaries for
partisan ends and for no other reason violates the Equal Protection Clause in
and of itself. We disagree, however, with this conception of a constitutional
violation. Specifically, even if a state legislature redistricts with the specific
intention of disadvantaging one political party's election prospects, we do not
believe that there has been an unconstitutional discrimination against members
of that party unless the redistricting does in fact disadvantage it at the polls.
53
54
55
actual disadvantage beyond that shown by the election results: It surely cannot
be an actual disadvantage in terms of fair representation on a group level just to
be placed in a district with a supermajority of other Democratic voters or a
district that departs from pre-existing political boundaries. Only when such
placement affects election results and political power statewide has an actual
disadvantage occurred.
56
57
58
This course is consistent with our equal protection cases generally and is the
course we follow here: We assumed that there was discriminatory intent, found
that there was insufficient discriminatory effect to constitute an equal protection
violation,19 and therefore did not reach the question of the state interests
(legitimate or otherwise) served by the particular districts as they were created
by the legislature. Consequently, the valid or invalid configuration of the
districts was an issue we did not need to consider.20
59
various factors confuses the import of each factor and disguises the essential
conclusion of Justice POWELL's opinion: that disproportionate election results
alone are a sufficient effect to support a finding of a constitutional violation.
60
IV
61
62
Reversed.
63
64
65
It is not surprising that citizens who are troubled by gerrymandering turn first
to the courts for redress. De Tocqueville, that perceptive commentator on our
country, observed that "[s]carcely any question arises in the United States
which does not become, sooner or later, a subject of judicial debate." 1 A. De
Tocqueville, Democracy in America 330 (H. Reeve trans. 1961). What I
question is the Court's urge to craft a judicial remedy for this perceived
"injustice." In my view, the Framers of the Constitution envisioned quite a
different scheme. They placed responsibility for correction of such flaws in the
people, relying on them to influence their elected representatives. As Justice
Frankfurter wrote when the Court entered this political arena:
66
67
68
69
There can be little doubt that the emergence of a strong and stable two-party
system in this country has contributed enormously to sound and effective
government. The preservation and health of our political institutions, state and
federal, depends to no small extent on the continued vitality of our two-party
system, which permits both stability and measured change. The opportunity to
control the drawing of electoral boundaries through the legislative process of
apportionment is a critical and traditional part of politics in the United States,
and one that plays no small role in fostering active participation in the political
parties at every level. Thus, the legislative business of apportionment is
fundamentally a political affair, and challenges to the manner in which an
apportionment has been carried outby the very parties that are responsible for
this processpresent a political question in the truest sense of the term.
70
To turn these matters over to the federal judiciary is to inject the courts into the
most heated partisan issues. It is predictable that the courts will respond by
moving away from the nebulous standard a plurality of the Court fashions
today and toward some form of rough proportional representation for all
political groups. The consequences of this shift will be as immense as they are
unfortunate. I do not believe, and the Court offers not a shred of evidence to
suggest, that the Framers of the Constitution intended the judicial power to
encompass the making of such fundamental choices about how this Nation is to
be governed. Nor do I believe that the proportional representation towards
which the Court's expansion of equal protection doctrine will lead is consistent
with our history, our traditions, or our political institutions.
71
The Court pays little heed to these considerations, which should inform any
sensible jurisprudence of Article III and of the Equal Protection Clause. The
Court's reflexive application of precedent ignores the maxim that "[p]articularly
in dealing with claims under broad provisions of the Constitution, which derive
content by an interpretative process of inclusion and exclusion, it is imperative
that generalizations, based on and qualified by the concrete situations that gave
rise to them, must not be applied out of context in disregard of variant
controlling facts." Gomillion v. Lightfoot, 364 U.S. 339, 343-344, 81 S.Ct. 125,
128-129, 5 L.Ed.2d 110 (1960). In cases such as this one, which may
profoundly affect the governance of this Nation, it is not enough to cite
precedent: we should examine it for possible limits, and if they are lacking, for
possible flaws.
72
* Appellees are Indiana Democrats who claim that Indiana's 1981 state
apportionment discriminates against Democrats on a statewide basis by diluting
their votes, thereby depriving them of "their proportionate share of political
influence." Baker v. Carr, 369 U.S. 186, 299, 82 S.Ct. 691, 754-755, 7 L.Ed.2d
663 (1962) (Frankfurter, J., dissenting). The Court, relying principally on Baker
v. Carr, supra, Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506
(1964), Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298
(1973), and the line of racial gerrymandering cases including Rogers v. Lodge,
458 U.S. 613, 102 S.Ct. 3272, 73 L.Ed.2d 1012 (1982), and White v. Regester,
412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), holds that appellees'
"purely political equal protection claim," ante, at 119, does not present a
political question and is therefore justiciable. Specifically, the Court holds that
the fact that a vote dilution claim "is submitted by a political group, rather than
a racial group, does not distinguish it in terms of justiciability." Ante, at 125.
73
The step taken today is a momentous one, which if followed in the future can
only lead to political instability and judicial malaise. If members of the major
political parties are protected by the Equal Protection Clause from dilution of
their voting strength, then members of every identifiable group that possesses
distinctive interests and tends to vote on the basis of those interests should be
able to bring similar claims. Federal courts will have no alternative but to
attempt to recreate the complex process of legislative apportionment in the
context of adversary litigation in order to reconcile the competing claims of
political, religious, ethnic, racial, occupational, and socioeconomic groups.
Even if there were some way of limiting such claims to organized political
parties, the fact remains that the losing party or the losing group of legislators
in every reapportionment will now be invited to fight the battle anew in federal
court. Apportionment is so important to legislators and political parties that the
burden of proof the plurality places on political gerrymandering plaintiffs is
unlikely to deter the routine lodging of such complaints. Notwithstanding the
plurality's threshold requirement of discriminatory effects, the Court's holding
that political gerrymandering claims are justiciable has opened the door to
pervasive and unwarranted judicial superintendence of the legislative task of
apportionment. There is simply no clear stopping point to prevent the gradual
evolution of a requirement of roughly proportional representation for every
cohesive political group.
75
In my view, this enterprise is flawed from its inception. The Equal Protection
Clause does not supply judicially manageable standards for resolving purely
political gerrymandering claims, and no group right to an equal share of
political power was ever intended by the Framers of the Fourteenth
Amendment. The Court rests its case on precedent, but the cases on which the
Court relies do not require that we take this next and most far-reaching step into
the "political thicket." Colegrove v. Green, 328 U.S. 549, 556, 66 S.Ct. 1198,
1201, 90 L.Ed. 1432 (1946) (opinion of Frankfurter, J.).
76
legislative districting in Reynolds v. Sims, supra. But until today the Court has
not extended the principles of Baker v. Carr and Reynolds v. Sims to test a
legislative districting plan on grounds of partisan political gerrymandering.
Indeed, one year after Reynolds v. Sims, the Court was unanimous in summarily
affirming a judgment determining that a political gerrymandering challenge was
nonjusticiable; as Justice Harlan pointed out, the Court's action constituted a
rejection of "contentions that . . . partisan 'gerrymandering' may be subject to
federal constitutional attack under the Fourteenth Amendment." WMCA, Inc. v.
Lomenzo, 382 U.S. 4, 6, 86 S.Ct. 24, 26, 15 L.Ed.2d 2 (1965) (concurring
opinion).
77
The question raised again today, 21 years later, is whether a court can apply the
familiar "[j]udicial standards under the Equal Protection Clause," Baker v.
Carr, 369 U.S., at 226, 82 S.Ct., at 715, without being forced to make a
nonjudicial policy determination or to resort to a standard that is not judicially
manageable. In order to answer that question, it is necessary to interpret the
Equal Protection Clause. As Justice Harlan pointed out in his dissent in Baker
v. Carr, "[t]he suggestion . . . that courts lack standards by which to decide such
cases as this, is relevant not only to the question of 'justiciability,' but also, and
perhaps more fundamentally, to the determination whether any cognizable
constitutional claim has been asserted in this case." Id., at 337, 82 S.Ct., at 774.
Baker v. Carr itself involved just such an initial interpretation of the Equal
Protection Clause: the Court in effect ruled that an arbitrary and capricious
discrimination against individual voters with respect to the weight of their votes
would state a cognizable claim under the Equal Protection Clause. See id., at
226, 82 S.Ct., at 715; id., at 338-339, 82 S.Ct., at 775-776 (Harlan, J.,
dissenting). That threshold determination about the reach and meaning of the
Equal Protection Clause was the basis for the Court's holding that the
complaint of the Tennessee voters was justiciable. Even this "arbitrary and
capricious" standard threatened to prove unmanageable, but the difficulty was
pretermitted when a relatively simple and judicially manageable requirement of
population equality among districts was adopted the following Term in
Reynolds v. Sims. See Bickel, The Supreme Court and Reapportionment, in
Reapportionment in the 1970's, pp. 57, 64 (N. Polsby ed. 1971).
78
Baker v. Carr does not require that we hold that the right asserted in this case is
similarly within the intendment of the Equal Protection Clause and
determinable under the standards developed to enforce that Clause. The right
asserted in Baker v. Carr was an individual right to a vote whose weight was
not arbitrarily subjected to "debasement," 369 U.S., at 194, 82 S.Ct., at 697698. The rights asserted in this case are group rights to an equal share of
political power and representation, and the "arbitrary and capricious" standard
discussed in Baker v. Carr cannot serve as the basis for recognizing such rights.
Indeed, the Court today does not rely on such a standard.
79
Instead, the Court justifies the extension of vote dilution claims to mainstream
political groups with the pronouncement that "Reynolds surely indicates the
justiciability of claims going to the adequacy of representation in state
legislatures." Ante, at 124. But Reynolds makes plain that the one person, one
vote principle safeguards the individual's right to vote, not the interests of
political groups: "To the extent that a citizen's right to vote is debased, he is
that much less a citizen. The fact that an individual lives here or there is not a
legitimate reason for overweighting or diluting the efficacy of his vote." 377
U.S., at 567, 84 S.Ct., at 1384. For that reason, "an individual's right to vote for
state legislators is unconstitutionally impaired when its weight is in a
substantial fashion diluted when compared with votes of citizens living in other
parts of the State." Id., at 568, 84 S.Ct., at 1385. Thus, the right guaranteed by
the Equal Protection Clause as interpreted in Reynolds is "the right of each
voter to 'have his vote weighted equally with those of all other citizens.' "
Mobile v. Bolden, 446 U.S. 55, 78, 100 S.Ct. 1490, 1505, 64 L.Ed.2d 47 (1980)
(plurality opinion).
80
In the case of mainstream political groups, the Court has not accepted the
argument that an "asserted entitlement to group representation," Bolden, 446
U.S., at 77, 100 S.Ct., at 1505, can be traced to the one person, one vote
principle:
81
"It is, of course, true that the right of a person to vote on an equal basis with
other voters draws much of its significance from the political associations that
its exercise reflects, but it is an altogether different matter to conclude that
political groups themselves have an independent constitutional claim to
representation. And the Court's decisions hold squarely that they do not." Id., at
78-79, 100 S.Ct., at 1506 (citing United Jewish Organizations of
Williamsburgh, Inc. v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229
(1977); White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973);
and Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971)).
82
that inhibits an individual's right to vote and state action that affects the
political strength of various groups that compete for leadership in a
democratically governed community." Bolden, supra, at 83, 100 S.Ct., at 1508
(STEVENS, J., concurring in judgment).
83
Nor do this Court's racial gerrymandering cases require the recognition of any
such group right outside the context of racial discrimination. As Justice
Frankfurter observed:
84
85
86
Clearly, members of the Democratic and Republican Parties cannot claim that
they are a discrete and insular group vulnerable to exclusion from the political
process by some dominant group: these political parties are the dominant
groups, and the Court has offered no reason to believe that they are incapable of
fending for themselves through the political process. Indeed, there is good
reason to think that political gerrymandering is a self-limiting enterprise. See B.
Cain, The Reapportionment Puzzle 151-159 (1984). In order to gerrymander,
the legislative majority must weaken some of its safe seats, thus exposing its
own incumbents to greater risks of defeatrisks they may refuse to accept past
a certain point. Id., at 154-155. Similarly, an overambitious gerrymander can
lead to disaster for the legislative majority: because it has created more seats in
which it hopes to win relatively narrow victories, the same swing in overall
voting strength will tend to cost the legislative majority more and more seats as
the gerrymander becomes more ambitious. Id., at 152. More generally, each
major party presumably has ample weapons at its disposal to conduct the
partisan struggle that often leads to a partisan apportionment, but also often
leads to a bipartisan one. There is no proof before us that political
gerrymandering is an evil that cannot be checked or cured by the people or by
the parties themselves. Absent such proof, I see no basis for concluding that
there is a need, let alone a constitutional basis, for judicial intervention.
87
The plurality agrees that it would be unwise to "embroil the judiciary in secondguessing what has consistently been referred to as a political task for the
legislature." Ante, at 133. Moreover, the plurality is willing to presume that
elected candidates will not ignore the interests of voters for the losing
candidate, and it correctly observes that "the power to influence the political
process is not limited to winning elections." Ante, at 132. But these propositions
support my positionthat the costs of judicial intervention will be severe and
that political gerrymandering simply does not cause intolerable harm to the
ability of major political groups to advance their interests.
88
89
The Court's reliance on Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37
91
A bipartisan gerrymander employs the same technique, and has the same effect
on individual voters, as does a partisan gerrymander. In each instance, groups
of individuals are assigned to districts with an eye towards promoting the ends
of a political party and its incumbent legislators. Some groups within each party
will lose any chance to elect a representative who belongs to their party,
because they have been assigned to a district in which the opposing party holds
an overwhelming advantage. Independent voters may lose any chance to
influence the outcome of elections in their district, if one party has a sufficiently
strong majority. As the plurality acknowledges, the scheme upheld in Gaffney
tended to "deny safe district minorities any realistic chance to elect their own
representatives." Ante, at 131. If this bipartisan arrangement between two
groups of self-interested legislators is constitutionally permissible, as I believe
and as the Court held in Gaffney, thenin terms of the rights of individualsit
should be equally permissible for a legislative majority to employ the same
means to pursue its own interests over the opposition of the other party.
92
II
93
94
Vote dilution analysis is far less manageable when extended to major political
parties than if confined to racial minority groups. First, an increase in the
number of competing claims to equal group representation will make judicial
review of apportionment vastly more complex. Designing an apportionment
plan that does not impair or degrade the voting strength of several groups is
more difficult than designing a plan that does not have such an effect on one
group for the simple reason that, as the number of criteria the plan must meet
increases, the number of solutions that will satisfy those criteria will decrease.
Even where it is not impossible to reconcile the competing claims of political,
racial, and other groups, the predictable result will be greater judicial intrusion
into the apportionment process.
95
96
97
99
100 Under the plurality's approach, where it is shown that under a challenged
apportionment plan one party will consistently fail to gain control of the
legislature even if it wins a majority of the votes, a court would be justified in
finding the "threshold showing" met, at which point "the legislation would be
examined for valid underpinnings." Ante, at 141. It may fairly be doubted that
this last step is anything more than a formality, except perhaps in the case of
bipartisan gerrymanders that have proved unexpectedly favorable to one party.
Consequently, although the plurality criticizes Justice POWELL for effectively
concluding that "disproportionate election results alone are a sufficient effect to
support a finding of a constitutional violation," ante, at 142, the plurality itself
A.
110 Gerrymandering is "the deliberate and arbitrary distortion of district boundaries
and populations for partisan or personal political purposes." Kirkpatrick v.
Preisler, 394 U.S. 526, 538, 89 S.Ct. 1225, 1232, 22 L.Ed.2d 519 (1969)
(Fortas, J., concurring).3 As Justice STEVENS correctly observed,
gerrymandering violates the Equal Protection Clause only when the
redistricting plan serves "no purpose other than to favor one segmentwhether
racial, ethnic, religious, economic, or political that may occupy a position of
strength at a particular time, or to disadvantage a politically weak segment of
the community." Karcher v. Daggett, 462 U.S. 725, 748, 103 S.Ct. 2653, 2668,
77 L.Ed.2d 133 (1983) (concurring opinion).
111 The term "gerrymandering," however, is also used loosely to describe the
common practice of the party in power to choose the redistricting plan that
gives it an advantage at the polls. An intent to discriminate in this sense may be
present whenever redistricting occurs. See Gaffney v. Cummings, 412 U.S. 735,
753, 93 S.Ct. 2321, 2331, 37 L.Ed.2d 298 (1973); Cousins v. City Council of
Chicago, 466 F.2d 830, 847 (CA7) (STEVENS, J., dissenting), cert. denied,
409 U.S. 893, 93 S.Ct. 85, 34 L.Ed.2d 151 (1972). Moreover, since legislative
bodies rarely reflect accurately the popular voting strength of the principal
political parties, the effect of any particular redistricting may be perceived as
unfair. See 462 U.S., at 752-754, 103 S.Ct., at 2671-2672. Consequently, only a
sensitive and searching inquiry can distinguish gerrymandering in the "loose"
sense from gerrymandering that amounts to unconstitutional discrimination.
Because it is difficult to develop and apply standards that will identify the
unconstitutional gerrymander, courts may seek to avoid their responsibility to
enforce the Equal Protection Clause by finding that a claim of gerrymandering
is nonjusticiable. I agree with the Court that such a course is mistaken, and that
the allegations in this case raise a justiciable issue.4
112 Moreover, I am convinced that appropriate judicial standards can and should be
developed. Justice Fortas' definition of unconstitutional gerrymandering
properly focuses on whether the boundaries of the voting districts have been
distorted deliberately and arbitrarily to achieve illegitimate ends. Kirkpatrick v.
Preisler, supra, 394 U.S., at 538, 89 S.Ct., at 1232. Under this definition, the
merits of a gerrymandering claim must be determined by reference to the
configurations of the districts, the observance of political subdivision lines, and
other criteria that have independent relevance to the fairness of redistricting.
See Karcher v. Daggett, supra, 462 U.S., at 755-759, 103 S.Ct., at 2672-2675
(STEVENS, J., concurring). In this case, the District Court examined the
redistricting in light of such factors and found, among other facts, that the
117 In light of the foregoing principles, I believe that the plurality's opinion is
seriously flawed in several respects. First, apparently to avoid the forceful
evidence that some district lines indisputably were designed to and did
discriminate against Democrats, the plurality describes appellees' claim as
alleging that "Democratic voters over the State as a whole, not Democratic
voters in particular districts, have been subjected to unconstitutional
discrimination." Ante, at 127. This characterization is not inconsistent with
appellees' proof, and the District Court's finding, of statewide discriminatory
effect resulting from "individual districting" that "exemplif[ies] this
discrimination." Ibid. If Democratic voters in a number of critical districts are
the focus of unconstitutional discrimination, as the District Court found, the
effect of that discrimination will be felt over the State as a whole.
118 The plurality also erroneously characterizes the harm members of the losing
party suffer as a group when they are deprived, through deliberate and arbitrary
distortion of district boundaries, of the opportunity to elect representatives of
their choosing.7 It may be, as the plurality suggests, that representatives will not
"entirely ignore the interests" of opposition voters. Ante, at 132. But it defies
political reality to suppose that members of a losing party have as much
political influence over state government as do members of the victorious party.
Even the most conscientious state legislators do not disregard opportunities to
reward persons or groups who were active supporters in their election
campaigns. Similarly, no one doubts that partisan considerations play a major
role in the passage of legislation and the appointment of state officers. Not
surprisingly, therefore, the District Court expressly found that "[c]ontrol of the
General Assembly is crucial" to members of the major political parties in
Indiana. 603 F.Supp., at 1483.8 In light of those findings, I cannot accept the
plurality's apparent conclusion that loss of this "crucial" position is
constitutionally insignificant as long as the losers are not "entirely ignored" by
the winners.
119 The plurality relies almost exclusively on the "one person, one vote" standard
to reject appellees' convincing proof that the redistricting plan had a seriously
discriminatory effect on their voting strength in particular districts. The
plurality properly describes the claim in this case as a denial of fair and
effective "representation," ante, at 124, but it does not provide any explanation
of how complying with "one person, one vote" deters or identifies a
gerrymander that unconstitutionally discriminates against a cognizable group of
voters. While that standard affords some protection to the voting rights of
individuals, "it protects groups only indirectly at best," Karcher v. Daggett, 462
U.S., at 752, 103 S.Ct., at 2671 (STEVENS, J., concurring), even when the
group's identity is determined solely by reference to the fact that its members
reside in a particular voting district. "One person, one vote" alone does not
protect the voting rights of a group made up of persons affiliated with a
particular political party who seek to achieve representation through their
combined voting strength. Thus, the facts that the legislature permitted each
Democratic voter to cast his or her one vote, erected no direct barriers to
Democratic voters' exercise of the franchise, and drew districts of equal
population, are irrelevant to a claim that district lines were drawn for the
purpose and with the effect of substantially debasing the strength of votes cast
by Democrats as a group.9
120 The final and most basic flaw in the plurality's opinion is its failure to enunciate
any standard that affords guidance to legislatures and courts.10 Legislators and
judges are left to wonder whether compliance with "one person, one vote"
completely insulates a partisan gerrymander from constitutional scrutiny, or
whether a fairer but as yet undefined standard applies. The failure to articulate
clear doctrine in this area places the plurality in the curious position of inviting
further litigation even as it appears to signal the "constitutional green light" 11 to
would-be gerrymanderers.
III
121 In Karcher v. Daggett, Justice STEVENS, echoing the decision in Reynolds v.
Sims, described factors that I believe properly should guide both legislators
who redistrict and judges who test redistricting plans against constitutional
challenges. 462 U.S., at 753-761, 103 S.Ct., at 2671-2676. The most important
of these factors are the shapes of voting districts and adherence to established
political subdivision boundaries.12 Other relevant considerations include the
nature of the legislative procedures by which the apportionment law was
adopted and legislative history reflecting contemporaneous legislative goals. To
make out a case of unconstitutional partisan gerrymandering, the plaintiff
should be required to offer proof concerning these factors, which bear directly
on the fairness of a redistricting plan, as well as evidence concerning
population disparities and statistics tending to show vote dilution. No one factor
should be dispositive.13
122 In this case, appellees offered convincing proof of the ease with which
mapmakers, consistent with the "one person, one vote" standard, may design a
districting plan that purposefully discriminates against political opponents as
well as racial minorities. Computer technology now enables gerrymanderers to
achieve their purpose while adhering perfectly to the requirement that districts
be of equal population. Relying on the factors correctly described by Justice
STEVENS in Karcher v. Daggett, the District Court carefully reviewed
appellees' evidence and found that the redistricting law was intended to and did
unconstitutionally discriminate against Democrats as a group. We have held
that a district court's ultimate determination that a redistricting plan was "being
maintained for discriminatory purposes," as well as its "subsidiary findings of
fact," may not be set aside by a reviewing court unless they are clearly
erroneous. Rogers v. Lodge, 458 U.S. 613, 622-623, 102 S.Ct. 3272, 32783279, 73 L.Ed.2d 1012 (1982); see, e.g., White v. Regester, 412 U.S. 755, 769770, 93 S.Ct. 2332, 2341, 37 L.Ed.2d 314 (1973). The plurality ignores these
precedents.14 The plurality also disregards the various factors discussed by the
District Court as adequate indicia of unconstitutional gerrymandering.
123 * A court should look first to the legislative process by which the challenged
plan was adopted. Here, the District Court found that the procedures used in
redistricting Indiana were carefully designed to exclude Democrats from
participating in the legislative process. In February 1981, both Houses of the
General Assembly passed reapportionment bills with no substantive content
and referred them to the other chamber where conflicting amendments were
made. The purpose of this process was to send "vehicle bills" to a Conference
Committee whose task was to apportion representation. Four conferees and four
advisers served on the Committee. The conferees, all Republicans, were
responsible for designing the voting districts and were entitled to vote on the
result of their own efforts. The advisers, Democrats, were excluded from the
mapmaking process and were given no Committee vote. 603 F.Supp., at 1483.
124 The legislative process consisted of nothing more than the majority party's
private application of computer technology to mapmaking. The Republican
State Committee engaged the services of a computer firm to aid the conferees in
their task. Id., at 1483-1484. According to the Conference Committee
Chairman, the only data used in the computer program were precinct
population, race of precinct citizens, precinct political complexion, and
statewide party voting trends. Access to the mapmaking process was strictly
limited. No member of the Democratic Party and no member of the public was
provided with any of the information used in or generated by the computer
program. When questioned about the lack of minority party participation in the
redistricting process, the Chairman of the Conference Committee stated that the
Democrats would "have the privilege to offer a minority map. But I will advise
you in advance that it will not be accepted." Id., at 1484.
125 Republicans promised to hold public hearings on redistricting. No hearing was
held during the mapmaking process, the only time during which voters' views
could be expected to influence their legislators. Ibid. Two days before the end
of the General Assembly's regular session, during the first and only public
plans, the District Court also noted the substantial evidence that appellants
were motivated solely by partisan considerations. Id., at 1484. There is no
evidence that the public interest in a fair electoral process was given any
consideration by appellants. Indeed, as noted above, the mapmakers' partisan
goals were made explicitly clear by contemporaneous statements of Republican
leaders who openly acknowledged that their goal was to disadvantage
Democratic voters. As one Republican House member concisely put it, "[t]he
name of the game is to keep us in power." 17 NAACP Plaintiffs' Exhibit 232
(Indianapolis Star, Mar. 22, 1981, section 2, p. 3). When the plan was
completed, Republican leaders announced that the House map was designed to
yield 56 "safe" Republican seats and 30 Democratic seats, with the remainder
being "tossups." NAACP Plaintiffs' Exhibit 242 (Post-Tribune, Gary, Ind., Apr.
29, 1981, p. 1). Republicans expected that their Senate map would regularly
produce 30 Republican seats and 8 to 10 Democratic seats so that Republicans
would maintain their grip on the Senate even if Democrats won the remaining
seats. NAACP Plaintiffs' Exhibit 241 (Post-Tribune, Gary, Ind., Apr. 29, 1981,
p. 1). In short, the record unequivocally demonstrates that in 1981 the
Republican-dominated General Assembly deliberately sought to design a
redistricting plan under which members of the Democratic Party would be
deprived of a fair opportunity to win control of the General Assembly at least
until 1991, the date of the next redistricting.
IV
A.
129 I turn now to the District Court's findings with respect particularly to the
gerrymandering of the House districts. The court found that the plan contained
voting districts whose irrational shapes called for justification. E.g., House
Districts 20, 22, 25, 45, 46, 48, 62, 66, 70, 73. The findings concerning the
district configurations reflect the panel's familiarity with Indiana geography and
the particular characteristics of the State's political subdivisions. As the District
Court noted, the voter confusion generated by irrational district boundaries is
exacerbated in this case by the fact that the lines in the House plan were drawn
independently of those in the Senate plan. 603 F.Supp., at 1484-1485. When
the Senate voting districts are overlaid on the House Districts, the potential for
voter confusion becomes readily apparent as lines and districts intersect in a
crazy quilt.18
130 The District Court carefully considered the multimember districts contained in
the House plan and found that they were intentionally employed to minimize
Democratic voting power. This Court has expressly recognized that "[a]
B
132 Since half of the Senate membership is up for election every two years, the
only election results under the challenged plan available at trial related to 25 of
the 50 Senate seats. Those results showed that, of the seats up for election in
1982, Democrats were elected to 13 seats and Republicans to 12. Democratic
candidates earned about 53.1 percent of the vote, and Republicans received
about 46.9 percent. At trial, it was appellees' contention that most of the Senate
seats won by Democrats in 1982 were "safe" Democratic seats so that their
party's success at the polls in that year was fully consistent with the statewide
Republican gerrymander. This contention is borne out by the results of the
1984 Senate election. In that election, Democratic candidates received 42.3
percent of the vote, and Republicans 57.7 percent. Yet, of the 25 Senate
positions up for election, only 7 were captured by Democrats.24
C
133 The District Court found, and I agree, that appellants failed to justify the
discriminatory impact of the plan by showing that the plan had a rational basis
in permissible neutral criteria. Appellants' primary justification was that the
plan comports with the principle of "one person, one vote." Their plan did
adhere to that objective, with population deviations between House districts of
1.05 percent and between Senate districts of 1.15 percent. But reliance on "one
person, one vote" does not sufficiently explain or justify the discrimination the
plan inflicted on Democratic voters as a group. The District Court expressly
found that the irregular district shapes could not be justified on the basis of
population distribution. Id., at 1494. Nor does adherence to "one person, one
vote" excuse the mapmakers' failure to honor established political or
community boundaries. It does not excuse the irrational use of multimember
districts, with their devastating impact on the voting strength of Democrats.
The only other justification offered by appellants, for which the District Court
found some support as a contemporaneous goal, was that the mapmakers
sought to maintain "the black representation in the General Assembly that
existed prior to the new districting plan." But the court further determined that
the impact of the redistricting fell most harshly on black voters who
predominantly are Democrats. Id., at 1488, 1489-1490. None of these critical
findings was found by the plurality today to be clearly erroneous.
V
134 In conclusion, I want to make clear the limits of the standard that I believe the
Equal Protection Clause imposes on legislators engaged in redistricting.
These bills were "vehicle bills"bills that had no real content. Both bills were
passed and were then referred to the other House and eventually to a
Conference Committee, which consisted entirely of Republican members. Four
Democratic "advisers" to the Committee were appointed, but they had no
voting powers. Further, they were excluded from the substantive work of the
Committee: The Republican State Committee funded a computerized study by
an outside firm that produced the districting map that was eventually used, and
the Democratic "advisers" were not allowed access to the computer or to the
results of the study. They nevertheless attempted to develop apportionment
proposals of their own using the 1980 census data. A few days before the end
of the 1981 legislative session, the Conference Committee presented its plan to
the legislature. The Democratic minority also presented its alternative plan. The
majority plan was passed in both Houses with voting along party lines and was
signed into law by the Governor.
The court noted that various House districts combined urban and suburban or
rural voters with dissimilar interests and that many of the districts were
unwieldy shapes. Using Marion County as one example, the court observed that
the county itself had exactly the population to support 14 House seats;
nevertheless, it was combined with various surrounding areas to form five
triple-member districts, which maintained the county's prior 15-member
delegation even though it had in fact suffered a population decrease. Believing
that the resulting multi-member districts were suspect in terms of compactness,
the court concluded that no rational reason could support them.
In addition, the court quoted from the deposition testimony of the Speaker of
the House as follows:
"MR. SUSSMAN: What I would like you to do here again is to give me
whatever reasons were operative to your mind in maintaining or creating multimember districts with regard to (Districts) 48 through 52 [the Marion County
districts].
"MR. DAILEY: Political.
"MR. SUSSMAN: What were the political factors?
"MR. DAILEY: We wanted to save as many incumbent Republicans as
possible." Id., at 1484.
The court also quoted from the deposition testimony of Senator Bosma as
follows:
"MR. SUSSMAN: This (newspaper) article says further, 'Under further
questioning from Townsend about input in actual map drawing, Bosma said
"You will have the privilege to offer a minority map. But I will advise you in
advance that it will not be accepted." ' Is that accurate?
"MR. BOSMA: That's accurate. I might add that I don't make goals for the
opposite team." Ibid.
Judge Pell, writing in dissent, disagreed. Assuming for the purposes of his
analysis that a political gerrymandering case was justiciable, he concluded that
the appellees had not proved discrimination. Rather, once the relative voting
strengths were properly ascertained, it was his view that the plan had
advantaged and disadvantaged both parties equally: The Democrats won more
than their voting strength in the Senate and less in the House. See id., at 15011502. Judge Pell also rejected the majority's analysis of the multimember
districts and thought that the State had followed rational nondiscriminatory
criteria in formulating the 1981 plan.
Consolidated with this suit in the proceedings below was another lawsuit, filed
by the Indiana NAACP. The NAACP suit challenged the plans as
unconstitutional dilutions of the black vote in Indiana in violation of the
Fourteenth and Fifteenth Amendments and the Voting Rights Act of 1965, 42
U.S.C. 1973 (as amended).
In rejecting the NAACP claims, the District Court majority found: "[T]he
voting efficacy of the NAACP plaintiffs was impinged upon because of their
politics and not because of their race. It is not in dispute that blacks in this state
vote overwhelmingly Democratic." 603 F.Supp., at 1489-1490. Consequently,
the majority found no Fifteenth Amendment or Voting Rights Act violation.
The dissent concurred with this result but gave different reasons for reaching
this conclusion.
The NAACP did not appeal these dispositions. Consequently, the only claims
now before us are the political gerrymandering claims.
This passage from Gaffney expresses a view similar to that of Robert G. Dixon,
Jr., one of the foremost scholars of reapportionment, who observed:
"[W]hether or not nonpopulation factors are expressly taken into account in
shaping political districts, they are inevitably everpresent and operative. They
influence all election outcomes in all sets of districts. The key concept to grasp
is that there are no neutral lines for legislative districts . . . every line drawn
aligns partisans and interest blocs in a particular way different from the
alignment that would result from putting the line in some other place." Dixon,
Fair Criteria and Procedures for Establishing Legislative Districts 7-8, in
Representation and Redistricting Issues (B. Grofman, A. Lijphart, R. McKay,
& H. Scarrow eds. 1982).
11
That discriminatory intent may not be difficult to prove in this context does not,
of course, mean that it need not be proved at all to succeed on such a claim.
12
Although these cases involved racial groups, we believe that the principles
developed in these cases would apply equally to claims by political groups in
individual districts. We note, however, that the elements necessary to a
successful vote dilution claim may be more difficult to prove in relation to a
claim by a political group. For example, historical patterns of exclusion from
the political processes, evidence which would support a vote dilution claim, are
in general more likely to be present for a racial group than for a political group.
13
Although this opinion relies on our cases relating to challenges by racial groups
to individual multimember districts, nothing herein is intended in any way to
suggest an alteration of the standards developed in those cases for evaluating
such claims.
14
15
The District Court apparently thought that the political group suffering
discrimination was all those voters who voted for Democratic Assembly
candidates in 1982. Judge Pell, in dissent, argued that the allegedly disfavored
group should be defined as those voters who could be counted on to vote
Democratic from election to election, thus excluding those who vote the
Republican ticket from time to time. He would have counted the true believers
by averaging the Democratic vote cast in two different elections for those
statewide offices for which party-line voting is thought to be the rule and
personality and issue-oriented factors are relatively unimportant. Although
accepting Judge Pell's definition of Democratic voters would have strongly
suggested that the 1981 reapportionment had no discriminatory effect at all,
there was no response to his position. The appellees take up the challenge in
this Court, claiming that Judge Pell chose the wrong election years for the
purpose of averaging the Democratic votes. The dispute need not now be
resolved.
16
17
Although Justice POWELL asserts that we mischaracterize these cases and that
any effects in addition to disproportionality were required to be demonstrated
only to prove discriminatory intent, we note that the effects test we cite was
initially set forth in White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d
314 (1973), which was decided before the Court expressly determined that
proof of discriminatory intent was a necessary component of an equal
protection claim. Moreover, the Voting Rights Act, which to a large extent
borrowed the effects test from White, explicitly declined to require any showing
of discriminatory intent. It may be true that our more recent cases have turned
on the question of discriminatory intent, but that does not imply that we have
abandoned the effects discussion we adopted earlier. Moreover, we believe that
Justice POWELL incorrectly asserts that more than one election must pass
before a successful racial or political gerrymandering claim may be brought.
Post, at 171-172, n. 10 (concurring in part and dissenting in part). Projected
election results based on district boundaries and past voting patterns may
certainly support this type of claim, even where no election has yet been held
under the challenged districting.
18
Justice POWELL proffers additional election results from the 1984 elections in
support of his conclusion. These results were not considered by the District
Court, and we decline to determine their significance without the benefit of any
20
21
22
This opinion uses the term "redistricting" to refer to the process by which state
legislators draw the boundaries of voting districts. The terms "redistricting,"
"apportionment," and "reapportionment" frequently are used interchangeably.
Backstrom, Robins, & Eller, Issues in Gerrymandering: An Exploratory
Measure of Partisan Gerrymandering Applied to Minnesota, 62 Minn.L.Rev.
1121, 1121, n. 1 (1978); Grofman, Criteria for Districting: A Social Science
Perspective, 33 UCLA L.Rev. 77, 78, n. 6 (1985). Technically, the words
"apportionment" and "reapportionment" apply to the "allocation of a finite
In the District Court, appellees' lawsuit was consolidated with a suit brought by
the Indiana NAACP. The plaintiffs in the NAACP suit argued that the
redistricting intentionally fragmented concentrations of black voters in violation
of the Fourteenth and Fifteenth Amendments, and of 2 of the Voting Rights
Act of 1965, 42 U.S.C. 1973. The District Court determined that the plan
discriminated against black voters, not because of their race, but because blacks
had a demonstrated and overwhelming tendency to vote as a bloc for
Democratic candidates. Indeed, the District Court explicitly found that the
"disadvantaging effect of the plan's multi-member districts falls particularly
hard and harsh upon black voters in the state." 603 F.Supp. 1479, 1488 (SD
Ind.1984). Rather than taking a cross-appeal challenging the District Court's
rejection of their constitutional and statutory claims, the NAACP plaintiffs have
filed a brief in this Court urging affirmance of the District Court's judgment that
the plan unconstitutionally discriminates against Democratic voters as a group
and against blacks as members of that group.
As the Court properly explains, our prior decisions make clear that an equal
protection challenge to redistricting does not present a nonjusticiable political
question. See Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962);
Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); Gaffney
v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973).
Accordingly, I join Part II of Justice WHITE's opinion.
The doctrine of "one person, one vote" originally was regarded as a means to
prevent discriminatory gerrymandering since "opportunities for gerrymandering
are greatest when there is freedom to construct unequally populated districts."
Kirkpatrick v. Preisler, 394 U.S. 526, 534, n. 4, 89 S.Ct. 1225, 1230, n. 4, 22
L.Ed.2d 519 (1969). Advances in computer technology achieved since the
doctrine was announced have drastically reduced its deterrent value by
permitting political cartographers to draw districts of equal population that
intentionally discriminate against cognizable groups of voters. See Karcher v.
Daggett, 462 U.S. 725, 752, n. 10, 103 S.Ct. 2653, 2671, n. 10, 77 L.Ed.2d 133
(1983) (STEVENS, J., concurring). For "one person, one vote" to serve its
intended purpose of implementing the constitutional mandate of fair and
effective representation, therefore, consideration also must be given to other
neutral factors.
As was said in the context of a constitutional challenge by black voters to an atlarge voting scheme, "[t]he absence of official obstacles to registration, voting,
and running for office heretofore has never been deemed to insulate an electoral
system" from constitutional attack. Mobile v. Bolden, supra, 446 U.S., at 102,
100 S.Ct., at 1518 (WHITE, J., dissenting).
10
The plurality describes its standard as requiring a "threshold" showing that the
"electoral system is arranged in a manner that will consistently degrade a
voter's or a group of voters' influence in the political process as a whole." Ante,
at 132; see ante, at 134, n. 14. Plaintiffs apparently can meet the plurality's
"threshold" only after a number of elections have been held under the
challenged plan. Ante, at 135-136. At one point, the plurality acknowledges that
this formulation is "somewhat different" from any standard we have previously
used to test an electoral plan against an equal protection challenge, ante, at 132,
and also takes pains to say that its opinion here does not suggest any "alteration
of the standards developed" for evaluating racial challenges, ante, at 132, n. 13;
see ante, at 134, n. 14. Curiously, the plurality then goes on to claim that its
standard is consistent
with that used when a racial group challenges an electoral scheme, ante, at 139140, and with our "equal protection cases generally," ante, at 141. This claim is
simply incorrect.
Our cases have construed the Equal Protection Clause to require proof of
intentional discrimination, placing the burden on plaintiffs to trace the "
'invidious quality of a law claimed to be racially discriminatory . . . to a racially
discriminatory purpose.' " Rogers v. Lodge, 458 U.S. 613, 616, 102 S.Ct. 3272,
3275, 73 L.Ed.2d 1012 (1982), quoting Washington v. Davis, 426 U.S. 229,
240, 96 S.Ct. 2040, 2048, 48 L.Ed.2d 597 (1976). In none of those cases was
the Court willing to assume discriminatory intent, as the plurality suggests
today is the proper course. Ante, at 141. While the plurality correctly observes
that our prior decisions have held that disproportionate election results alone do
not violate the Constitution, it erroneously suggests that those holdings flowed
solely from the "perception that the power to influence the political process is
not limited to winning elections." Ante, at 131-132. The plurality wholly ignores
the basic problem underlying all of those prior decisions, namely, that the
plaintiffs came into court with no direct proof of discriminatory intent. In those
cases, the Court concluded that proof of discriminatory effect, including
disproportionate election results, if serious enough, could give rise to an
inference of purposeful discrimination. See Rogers v. Lodge, supra, 458 U.S., at
618, 102 S.Ct., at 3276. As Justice WHITE has explained, the Court's decisions
in both White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973),
and Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971),
rested on the proposition that the requisite "invidious discriminatory purpose"
can be inferred from proof of "objective factors" concerning discriminatory
effect. Mobile v. Bolden, 446 U.S., at 95, 100 S.Ct., at 1514; see id., at 94-97,
102-103, 100 S.Ct., at 1517-1518 (dissenting opinion); see also White v.
Regester, supra, 412 U.S., at 765, 93 S.Ct., at 2339 (multimember districts are
unconstitutional where "used invidiously to cancel out" racial groups' voting
strength). I cannot agree, as the plurality suggests, that a standard requiring
proof of "heightened effect," where invidious intent has been established
directly, has support in any of our cases, or that an equal protection violation
can be established "only where a history (actual or projected) of
disproportionate results appears." Ante, at 139. If a racial minority established
that the legislature adopted a redistricting law for no purpose other than to
disadvantage that group, the plurality's new and erroneous standard would
require plaintiffs to wait for the results of several elections, creating a history of
discriminatory effect, before they can challenge the law in court. Ante, at 135136.
11
Edwards, The Gerrymander and "One Man, One Vote," 46 N.Y.U.L.Rev. 879,
880 (1971).
12
In some cases, proof of grotesque district shapes may, without more, provide
convincing proof of unconstitutional gerrymandering. In addition to the maps
appended to this opinion, see the redistricting maps appended to the Court's
opinions in Gomillion v. Lightfoot, 364 U.S. 339, 348, 81 S.Ct. 125, 130, 5
L.Ed.2d 110 (1960), and in Karcher v. Daggett, 462 U.S., at 744, 103 S.Ct., at
2665.
13
The plurality ignores the "clearly erroneous" standard of Rule 52(a), by saying
that it has not rejected any of the District Court's findings of fact, but has
"merely . . . disregarded those that were irrelevant in this case and held
insufficient those that inadequately supported the District Court's ultimate legal
conclusions." Ante, at 142, n. 20. In a gerrymandering case the facts as to how,
where, and why the legislature drew the district boundaries are at the heart of
the equal protection violation. Beyond stating that appellees' statistical proof
failed to satisfy its proposed threshold, the plurality makes no effort to explain
its flat assertions that the District Court's careful findings were "irrelevant" or
"insufficient."
15
Presumably as a result of the haste with which the redistricting law was pushed
through the General Assembly, parts of the State were "wholly omitted in the
1981 legislation." 603 F.Supp., at 1484. In the 1982 legislative session,
therefore, amendments were passed to assign the omitted areas to voting
districts. Ibid.
16
E.g., House Districts 20, 22, 25, 28, 42, 45, 46, 55, 57, 62, 66, 70, 73, 74;
Senate Districts 7, 24, 37, 39, 45, 47. See the redistricting maps appended to
this opinion.
17
18
Since the Indiana House of Representatives has 100 members, and the Senate
has 50, the mapmakers readily could have designed a "nested" plan, that is, a
plan that included "two House districts within one Senate district." 603
F.Supp., at 1484-1485. By permitting voters readily to identify their voting
districts and corresponding representatives, a nested plan can be expected to
foster voter participation. See Grofman, 33 UCLA L.Rev., at 88, 92. Instead, as
the District Court observed, the mapmakers drew House districts that were "not
at all relevant to the Senate districts." 603 F.Supp., at 1484.
19
In the context of racial gerrymandering claims, the Court has refused to adopt a
per se rule barring the use of multimember districts. White v. Regester, 412
U.S., at 765, 93 S.Ct., at 2339. But the Court has repeatedly recognized that the
characteristics of multimember districts, namely, their tendency to submerge
the voting strength of the minority by allowing the majority to capture all of the
district's assigned seats, make them a ready means for legislative discrimination
against racial groups or political opponents. E.g., Rogers v. Lodge, 458 U.S., at
616, 102 S.Ct., at 3275.
20
The multimember districts are House Districts 7, 9, 10, 11, 12, 14, 15, 19, 20,
31, 48, 49, 50, 51, 52, 75.
21
The District Court found that the multimember districts employed in Marion
County were "particularly suspect with respect to compactness." 603 F.Supp., at
1487. Of all the districts in the challenged plan, the court determined that
House District 48 "presents the most grievous example of the political
cartographer's handiwork in this case." Ibid. That district "forms the letter 'C'
around the central city of Indianapolis" and "includes portions of the urban
southwestside of the city, the airport and suburban
area around Ben Davis High School on the west side, and the Meridian Hills
area at the northern part of the county." Ibid. The court expressly determined
that, even though House District 48 satisfies "one person, one vote," there was
"simply no conceivable justification for this kind of district." Ibid.
The following map, taken from an exhibit provided by the parties, shows this
grotesque gerrymandering. The legislature first proceeded to disregard Marion
County's boundary lines, which essentially form a square, and then carved the
area it created into oddly shaped multimember districts.
The District Court also noted the discriminatory purpose served by the Marion
County House Districts, including District 48: "[T]he powerful Marion County
delegation forced neighboring counties to cede turf to permit a preservation of
the multi-member districts which had consistently returned Republicans to the
Statehouse." Id., at 1487, n. 1. Moreover, as appellees' statistical showing of
vote dilution plainly demonstrates, these gerrymandered districts had a
23
The 1984 House election in the Marion and Allen County House districts
reflected a similar disparity, when Republicans again captured 18 of the 21
House seats and the Democrats 3 despite the fact that Democratic candidates
earned approximately 38 percent of the vote in these counties.
24
25
As is evident from the several opinions filed today, there is no "Court" for a
standard that properly should be applied in determining whether a challenged
redistricting plan is an unconstitutional partisan political gerrymander. The
standard proposed by the plurality is explicitly rejected by two Justices, and
three Justices also have expressed the view that the plurality's standard will
"prove unmanageable and arbitrary." Ante, at 155 (O'CONNOR, J., joined by
BURGER, C.J., and REHNQUIST, J., concurring in judgment).
Page 185-Continued