League of United Latin American Citizens v. Perry

548 U.S. 399

Case Year: 2006

Note: This case presents several constitutional and statutory questions. The justices are badly divided on each issue. The opinion alignments that appear below reflect the positions expressed by the individual justices on the various issues.

Case Ruling: 5-4, Affirmed

Opinion Justice: Kennedy

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):


1st Concurring Opinion

Author: Breyer in Part

Joiner(s): Roberts, Souter, Stevens

1st Dissenting Opinion

Author: Scalia in Part


2nd Concurring Opinion



2nd Dissenting Opinion



3rd Concurring Opinion



3rd Dissenting Opinion



Other Concurring Opinions:


The 1990 census gave Texas three congressional seats in addition to its previous total of twenty-seven. The Democrats, controlling state government at that time and fearful of rising Republican strength, redrew district lines in way that would advantage the party in future elections. The Republicans challenged the redistricting plan as an unconstitutional partisan gerrymander, but were unsuccessful.

After the 2000 census, Texas gained two more congressional seats. Republicans by this time controlled the governorship and the state Senate, but not the House of Representatives. Under these conditions, the legislature was unable to pass a redistricting statute, and the federal district court was required to intervene. The court imposed a politically neutral plan (known as Plan 1151C).

Following elections in 2002, however, Texas Republicans found themselves in control of both houses of the state legislature and the governorship. The Republicans in the legislature sought to increase the party's control of the state's congressional delegation by initiating a redistricting plan. The timing was highly unusual because it occurred in the middle of a decade rather than in response to the decennial census. After a protracted partisan struggle, during which Democratic legislators temporarily left the state to reduce the possibility of a quorum, the legislature passed a new congressional districting plan in October 2003. The districting scheme became known as Plan1374C. The 2004 elections demonstrated the effectiveness of the Republicans strategy. While Republican congressional candidates received the votes of 58 percent of the electorate, the party captured 66 percent of the seats (twenty-one of thirty-two.)

Four lawsuits were filed against Gov. Rick Perry and other state officials, challenging the validity of Plan 1374C on a variety of statutory and constitutional grounds. The redistricting plan was generally approved at the district court level, and the cases were consolidated for U.S. Supreme Court review.

Although the Court addresses several different questions in this case, the excerpt that appears here emphasizes the dispute over the constitutionality of partisan gerrymandering. Only passing attention is given to the statutory issue of how the redistricting plan diluted Latino and African American voting strength in some districts in violation of the Voting Rights Act. Readers interested in that portion of the case are urged to consult the full decision by going to the Web address listed in the above headnote.



I [Facts of the case, omitted]



Based on two similar theories that address the mid-decade character of the 2003 redistricting, appellants now argue that Plan 1374C should be invalidated as an unconstitutional partisan gerrymander. In Davis v. Bandemer (1986), the Court held that an equal protection challenge to a political gerrymander presents a justiciable case or controversy, but there was disagreement over what substantive standard to apply. That disagreement persists. A plurality of the Court in Vieth v. Jubelirer [2004] would have held such challenges to be nonjusticiable political questions, but a majority declined to do so. 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 [Discussion of the legislative redistricting process, omitted]


Appellants claim that Plan 1374C, enacted by the Texas Legislature in 2003, is an unconstitutional political gerrymander. A decision, they claim, to effect mid-decennial redistricting, when solely motivated by partisan objectives, 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. The mid-decennial nature of the redistricting, appellants say, reveals the legislature's sole motivation. Unlike Vieth, where the legislature acted in the context of a required decennial 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, 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 majority over the Democratic minority.

A rule, or perhaps a presumption, of invalidity when a mid-decade redistricting plan is adopted solely for partisan motivations is a salutary one, in appellants' view, for then courts need not inquire about, nor parties prove, the discriminatory effects of partisan gerrymandering--a matter that has proved elusive since Bandemer. 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 their test is not convincing. To begin with, the state appellees 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 partisan 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. The state appellees also contend, and appellants do not contest, that a number of line-drawing requests by Democratic state legislators were honored.

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. 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 reference 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. . . .

The sole-intent standard offered here is no more compelling 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 gerrymanders. Under appellants' theory, a highly effective partisan gerrymander that coincided with decennial redistricting would receive less scrutiny than a bumbling, yet solely partisan, mid-decade redistricting. More concretely, the test would leave 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 a rough measure at best. Nevertheless, a congressional plan that more closely reflects the distribution of state party power seems a less likely vehicle for partisan discrimination than one that entrenches an electoral minority. By this measure, Plan 1374C can be seen as fairer than the plan that survived in Vieth and the two previous Texas plans--all three of which would pass the modified sole-intent test that Plan 1374C would fail.

A brief for one of the amici proposes a symmetry standard that would measure partisan bias by "compar[ing] how both parties would fare hypothetically if they each (in turn) had received a given percentage of the vote." 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 depend 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 invalidates a map based on unfair results that would occur in a hypothetical state of affairs. Presumably such a challenge could be litigated if and when the feared inequity arose. More fundamentally, the counterfactual plaintiff would face the same problem as the present, actual appellants: 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 unconstitutional partisanship.

In the absence of any other workable test for judging 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.


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 (1983). 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. . . . 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. 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. . . .

In sum, we disagree with appellants' view that a legislature'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 gerrymanders. 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.

III-IV [In these sections the Court finds that the redistricting plan diluted Latino representation in a west Texas district, but rejects an argument that it diluted African American representation in the Dallas area. Both decisions were based on Voting Rights Act.]


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 violation of §2 of the Voting Rights Act. We do hold that the redrawing of lines in District 23 violates §2 of the Voting Rights Act. The judgment of the District Court is affirmed in part, reversed in part, and vacated in part, and the cases are remanded for further proceedings. It is so ordered.



Despite the Texas Democratic Party's sordid history of manipulating the electoral process to perpetuate its stranglehold 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, . . . 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. . . .


The unique question of law that is raised in this appeal is one that the Court has not previously addressed. . . .

. . . [T]he 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. 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. . . .

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. . . . [T]here is more than ample evidence in the record to support such a finding. This evidence includes: (1) testimony from state legislators; (2) the procedural irregularities . . . 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 motivating force behind the decision to redistrict in 2003." In my judgment, there is not even a colorable basis for contending that the relevant intent--in this case a purely partisan intent--cannot be identified on the basis of admissible evidence in the record.

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. . . .

The requirements of the Federal Constitution that limit the State's power to rely exclusively on partisan preferences in drawing district lines are the Fourteenth Amendment's prohibition against invidious discrimination, and the First Amendment 's protection of citizens from official retaliation based on their political affiliation. The equal protection component of the Fourteenth Amendment requires actions taken by the sovereign to be supported by some legitimate interest, and further establishes that a bare desire to harm a politically disfavored group is not a legitimate interest. See, e.g., Cleburne v. Cleburne Living Center, Inc. (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, . . . their association with a political party, or their expression of political views."Vieth (Kennedy, J., concurring in judgment). These protections embodied in the First and Fourteenth Amendments reflect the fundamental duty of the sovereign to govern impartially.

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 representation, though still in accord with one-person, one-vote principles,' we would surely conclude the Constitution had been violated." Vieth (Kennedy, J., concurring in judgment). . . .


In my judgment the record amply supports the conclusion 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 influence the political process. . . .

The bias in Plan 1374C is most striking with regard to its effect on the ability of Democratic voters to elect candidates of their choice, but its discriminatory effect does not end there. Plan 1374C also lessens the influence Democratic voters are likely to be able to exert over Republican lawmakers, thus further minimizing Democrats' capacity to play a meaningful role in the political process. . . .

. . . 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.

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." [ Shaw v. Reno, 1993]. . . .

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. . . .

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. . . .

Furthermore, as discussed in Part II, the sole intent motivating the Texas Legislature'''s decision to replace Plan 1151C with Plan 1374C was to benefit Republicans and burden Democrats. Accordingly, in terms of both its intent and effect, Plan 1374C violates the sovereign's duty to govern impartially. . . .

Accordingly, even accepting the Court's view that a gerrymander is tolerable unless it in fact burdens the minority's representative rights, I would hold that Plan 1374C is unconstitutional. . . .

. . . [A]lthough 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 join Part II-D of the principal opinion, rejecting the one-person, one-vote challenge to Plan 1374C based simply on its mid-decade timing, and I also join Part II-A, in which the Court preserves the principle that partisan gerrymandering can be recognized as a violation of equal protection, see Vieth v. Jubelirer (2004). I see nothing to be gained by working through these cases on the standard I would have applied in Vieth (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 gerrymander 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, nor do I rule out the utility of a criterion of symmetry as a test. . . .

I join Part III of the principal opinion, in which the Court holds that Plan 1374C's Districts 23 and 25 violate §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.


[T]he timing of the redistricting (between census periods), the radical departure from traditional boundary-drawing criteria, and the other evidence . . . make clear that a "desire to maximize partisan advantage" was the "sole purpose behind the decision to promulgate Plan 1374C."

. . . [T]he plan's effort "to maximize partisan advantage" encompasses an effort not only to exaggerate the favored party's electoral majority but also to produce a majority of congressional representatives even if the favored party receives only a minority of popular votes.

Finally, because the plan entrenches the Republican Party, the State cannot successfully defend it as an effort simply to neutralize the Democratic Party's previous political 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 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 justification other than party advantage can be found." The record reveals a plan that overwhelmingly relies upon the unjustified use of purely partisan line-drawing considerations and which will likely have seriously harmful electoral consequences. For these reasons, I believe the plan in its entirety violates the Equal Protection Clause.


. . . I agree with the determination that appellants have not provided "a reliable standard for identifying unconstitutional political gerrymanders." 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 (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 [regarding violations of Section 2 of the Voting Rights Act]. . . .

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 necessarily leave someLatino 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 ethnicity. 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 maximum possible number of majority-minority effective opportunity districts, and the minority enjoys effective political power in the area well in excess of its proportion of the population, I would conclude that the courts have no further role to play in rejiggering the district lines under §2.

I respectfully dissent from Part III of the Court's opinion.



As I have previously expressed, claims of unconstitutional partisan gerrymandering do not present a justiciable case or controversy. Justice Kennedy's 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. . . . We must either conclude that the claim is nonjusticiable and dismiss it, or else set forth a standard and measure appellant's claim against it. 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.


I would dismiss appellants' vote-dilution claims premised on §2 of the Voting Rights Act of 1965 for failure to state a claim. . . . As The Chief Justice makes clear, the Court's §2 jurisprudence continues to drift ever further from the Act's purpose of ensuring minority voters equal electoral opportunities. . . .


Because I find no merit in either of the claims addressed by the Court, I must consider appellants' race-based equal protection claims. . . .

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 (1976). Although it is true that the effect of an action can support an inference of intent, there is ample evidence here to overcome any such inference and to support the State's political explanation. The District Court did not commit clear error by accepting it. . . . In light of these many factors bearing upon the question whether the State had a strong evidentiary basis for believing that the creation of District 25 was reasonably necessary to comply with §5 [of the Voting Rights Act], I would normally remand for the District Court to undertake that "fact-intensive" inquiry. Appellants concede, however, that the changes made to District 23 "necessitated creating an additional effective Latino district elsewhere, in an attempt to avoid Voting Rights Act liability." This is, of course, precisely the State's position. Nor do appellants charge that in creating 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.