Vieth v. Jubelirer

541 U.S. 267, 124 S. Ct. 1769, 158 L. Ed. 2d 546, 2004 U.S. LEXIS 3233

• Court: Supreme Court of the United States
• Decided: April 28, 2004
• Docket: 02-1580
• Status: Published

Opinions

Justice Scalia

announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice O’Connor, and Justice Thomas join.

Plaintiffs-appellants Richard Vieth, Norma Jean Vieth, and Susan Furey challenge a map drawn by the Pennsylvania General Assembly establishing districts for the election of congressional Representatives, on the ground that the dis-tricting constitutes an unconstitutional political gerrymander.¹ In Davis v. Bandemer, 478 U. S. 109 (1986), this Court held that political gerrymandering claims are justiciable, but could not agree upon a standard to adjudicate them. The present appeal presents the questions whether our decision in Bandemer was in error, and, if not, what the standard should be.

I

The facts, as alleged by the plaintiffs, are as follows. The population figures derived from the 2000 census showed that Pennsylvania was entitled to only 19 Representatives in Congress, a decrease in 2 from the Commonwealth’s previous delegation. Pennsylvania’s General Assembly took up the task of drawing a new districting map. At the time, the Republican Party controlled a majority of both state Houses and held the Governor’s office. Prominent national figures in the Republican Party pressured the General Assembly to adopt a partisan redistricting plan as a punitive measure against Democrats for having enacted pro-Democrat redistricting plans elsewhere. The Republican members of Pennsylvania’s House and Senate worked together on such a plan. On January 3, 2002, the General Assembly passed its plan, which was signed into law by Governor Schweiker as Act 1.

Plaintiffs, registered Democrats who vote in Pennsylvania, brought suit in the United States District Court for the Middle District of Pennsylvania, seeking to enjoin implementation of Act 1 under Rev. Stat. § 1979, 42 U. S. C. § 1983. Defendants-appellees were the Commonwealth of Pennsylvania and various executive and legislative officers responsible for enacting or implementing Act 1. The complaint alleged, among other things, that the legislation created mal-apportioned districts, in violation of the one-person, one-vote requirement of Article I, § 2, of the United States Constitution, and that it constituted a political gerrymander, in violation of Article I and the Equal Protection Clause of the Fourteenth Amendment. With regard to the latter contention, the complaint alleged that the districts created by Act 1 were “meandering and irregular,” and “ignorfed] all traditional redistricting criteria, including the preservation of local government boundaries, solely for the sake of partisan advantage.” Juris. Statement 136a, ¶ 22, 135a, ¶ 20.

A three-judge panel was convened pursuant to 28 U. S. C. §2284. The defendants moved to dismiss. The District Court granted the motion with respect to the political gerrymandering claim, and (on Eleventh Amendment grounds) all claims against the Commonwealth; but it declined to dismiss the apportionment claim as to other defendants. See Vieth v. Pennsylvania, 188 F. Supp. 2d 532 (MD Pa. 2002) (Vieth I). On trial of the apportionment claim, the District Court ruled in favor of plaintiffs. See Vieth v. Pennsylvania, 195 F. Supp. 2d 672 (MD Pa. 2002) (Vieth II). It retained jurisdiction over the case pending the court’s review and approval of a remedial redistricting plan. On April 18, 2002, Governor Schweiker signed into law Act. No. 2002-34, Pa. Stat. Ann., Tit. 25, § 3595.301 (Purdon Supp. 2003) (Act 34), a remedial plan that the Pennsylvania General Assembly had enacted to cure the apportionment problem of Act 1.

Plaintiffs moved to impose remedial districts, arguing that the District Court should not consider Act 34 to be a proper remedial scheme, both because it was malapportioned, and because it constituted an unconstitutional political gerrymander like its predecessor. The District Court denied this motion, concluding that the new districts were not malappor-tioned, and rejecting the political gerrymandering claim for the reasons previously assigned in Vieth I. Vieth v. Pennsylvania, 241 F. Supp. 2d 478, 484-485 (MD Pa. 2003) (Vieth III). The plaintiffs appealed the dismissal of their Act 34 political gerrymandering claim.² We noted probable jurisdiction. 539 U. S. 957 (2003).

II

Political gerrymanders are not new to the American scene. One scholar traces them back to the Colony, of Pennsylvania at the beginning of the 18th century, where several counties conspired to minimize the political power of the city of Philadelphia by refusing to allow it to merge or expand into surrounding jurisdictions, and denying it additional representatives. See E. Griffith, The Rise and Development of the Gerrymander 26-28 (1974) (hereinafter Griffith). In 1732, two members of His Majesty’s Council and the attorney general and deputy inspector and comptroller general of affairs of the Province of North Carolina reported that the Governor had proceeded to “divide old Precincts established by Law, & to enact new Ones in Places, whereby his Arts he has endeavoured to prepossess People in a future election according to his desire, his Designs herein being . . . either to endeavour by his means to get a Majority of his creatures in the Lower House” or to disrupt the assembly’s proceedings. 3 Colonial Records of North Carolina 380-381 (W. Saunders ed. 1886); see also Griffith 29. The political gerrymander remained alive and well (though not yet known by that name) at the time of the framing. There were allegations that Patrick Henry attempted (unsuccessfully) to gerrymander James Madison out of the First Congress. See 2 W. Rives, Life and Times of James Madison 655, n. 1 (reprint 1970); Letter from Thomas Jefferson to William Short, Feb. 9, 1789, reprinted in 5 Works of Thomas Jefferson 451 (P. Ford ed. 1904). And in 1812, of course, there occurred the notoriously outrageous political districting in Massachusetts that gave the gerrymander its name — an amalgam of the names of Massachusetts Governor Elbridge Gerry and the creature (“salamander”) which the outline of an election district he was credited with forming was thought to resemble. See Webster’s New International Dictionary 1052 (2d ed. 1945). “By 1840 the gerrymander was a recognized force in party politics and was generally attempted in all legislation enacted for the formation of election districts. It was generally conceded that each party would attempt to gain power which was not proportionate to its numerical strength.” Griffith 123.

It is significant that the Framers provided a remedy for such practices in the Constitution. Article I, § 4, while leaving in state legislatures the initial power to draw districts for federal elections, permitted Congress to “make or alter” those districts if it wished.³ Many objected to the congressional oversight established by this provision. In the course of the debates in the Constitutional Convention, Charles Pinckney and John Rutledge moved to strike the relevant language. James Madison responded in defense of the provision that Congress must be given the power to check partisan manipulation of the election process by the States:

“Whenever the State Legislatures had a favorite measure to carry, they would take care so to mould their regulations as to favor the candidates they wished to succeed. Besides, the inequality of the Representation in the Legislatures of particular States, would produce a like inequality in their representation in the Natl. Legislature, as it was presumable that the Counties having the power in the former case would secure it to themselves in the latter. What danger could there be in giving a controuling power to the Natl. Legislature?” 2 Records of the Federal Convention of 1787, pp. 240-241 (M. Farrand ed. 1911).

Although the motion of Pinckney and Rutledge failed, opposition to the “make or alter” provision of Article I, §4 — and the defense that it was needed to prevent political gerrymandering — continued to be voiced in the state ratifying debates. A delegate to the Massachusetts convention warned that state legislatures

“might make an unequal and partial division of the states into districts for the election of representatives, or they might even disqualify one third of the electors. Without these powers in Congress, the people can have no remedy; but the 4th section provides a remedy, a controlling power in a legislature, composed of senators and representatives of twelve states, without the influence of our commotions and factions, who will hear impartially, and preserve and restore to the people their equal and sacred rights of election.” 2 Debates on the Federal Constitution 27 (J. Elliot 2d ed. 1876).

The power bestowed on Congress to regulate elections, and in particular to restrain the practice of political gerrymandering, has not lain dormant. In the Apportionment Act of 1842, 5 Stat. 491, Congress provided that Representatives must be elected from single-member districts “composed of contiguous territory.” See Griffith 12 (noting that the law was “an attempt to forbid the practice of the gerrymander”). Congress again imposed these requirements in the Apportionment Act of 1862, 12 Stat. 572, and in 1872 further required that districts “contain] as nearly as practicable an equal number of inhabitants,” 17 Stat. 28, § 2. In the Apportionment Act of 1901, Congress imposed a compactness requirement. 31 Stat. 733. The requirements of contiguity, compactness, and equality of population were repeated in the 1911 apportionment legislation, 37 Stat. 13, but were not thereafter continued. Today, only the single-member-district-requirement remains. See 2 U. S. C. § 2c. Recent history, however, attests to Congress’s awareness of the sort of districting practices appellants protest, and of its power under Article I, §4, to control them. Since 1980, no fewer than five bills have been introduced to regulate gerrymandering in congressional districting. See H. R. 5037, 101st Cong., 2d Sess. (1990); H. R. 1711,101st Cong., 1st Sess. (1989); H. R. 3468, 98th Cong., 1st Sess. (1983); H. R. 5529, 97th Cong., 2d Sess. (1982); H. R. 2349, 97th Cong., 1st Sess. (1981).⁴

Eighteen years ago, we held that the Equal Protection Clause grants judges the power — and duty — to control political gerrymandering, see Davis v. Bandemer, 478 U. S. 109 (1986). It is to consideration of this precedent that we now turn.

Ill

As Chief Justice Marshall proclaimed two centuries ago, “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). Sometimes, however, the law is that the judicial department has no business entertaining the claim of unlawfiilness — because the question is entrusted to one of the political branches or involves no judicially enforceable rights. See, e. g., Nixon v. United States, 506 U. S. 224 (1993) (challenge to procedures used in Senate impeachment proceedings); Pacific States Telephone & Telegraph Co. v. Oregon, 223 U. S. 118 (1912) (claims arising under the Guaranty Clause of Article IV, §4). Such questions are said to be “nonjusticiable,” or “political questions.”

In Baker v. Carr, 369 U. S. 186 (1962), we set forth six independent tests for the existence of a political question:

“[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.” Id., at 217.

These tests are probably listed in descending order of both importance and certainty. The second is at issue here, and there is no doubt of its validity. “The judicial Power” created by Article III, § 1, of the Constitution is not whatever judges choose to do, see Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 487 (1982); cf. Grupo Mexicano de Desarrollo, S. A. v. Alliance Bond Fund, Inc., 527 U. S. 308, 332-333 (1999), or even whatever Congress chooses to assign them, see Lujan v. Defenders of Wildlife, 504 U. S. 555, 576-577 (1992); Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U. S. 103, 110-114 (1948). It is the power to act in the manner traditional for English and American courts. One of the most obvious limitations imposed by that requirement is that judicial action must be governed by standard, by rule. Laws promulgated by the Legislative Branch can be inconsistent, illogical, and ad hoc; law pronounced by the courts must be principled, rational, and based upon reasoned distinctions.

Over the dissent of three Justices, the Court held in Davis v. Bandemer that, since it was “not persuaded that there are no judicially discernible and manageable standards by which political gerrymander cases are to be decided,” 478 U. S., at 123, such cases were justiciable. The clumsy shifting of the burden of proof for the premise (the Court was “not persuaded” that standards do not exist, rather than “persuaded” that they do) was necessitated by the uncomfortable fact that the six-Justice majority could not discern what the judicially discernable standards might be. There was no majority on that point. Four of the Justices finding justiciability believed that the standard was one thing, see id., at 127 (plurality opinion of White, J., joined by Brennan, Marshall, and Blackmun, JJ.); two believed it was something else, see id., at 161 (Powell, J., joined by Stevens, J., concurring in part and dissenting in part). The lower courts have lived with that assurance of a standard (or more precisely, lack of assurance that there is no standard), coupled with that inability to specify a standard, for the past 18 years. In that time, they have considered numerous political gerrymandering claims; this Court has never revisited the unanswered question of what standard governs.

Nor can it be said that the lower courts have, over 18 years, succeeded in shaping the standard that this Court was initially unable to enunciate. They have simply applied the standard set forth in Bandemer’s four-justice plurality opinion. This might be thought to prove that the four-justice plurality standard has met the test of time — but for the fact that its application has almost invariably produced the same result (except for the incurring of attorney’s fees) as would have obtained if the question were nonjusticiable: Judicial intervention has been refused. As one commentary has put it, “[throughout its subsequent history, Bandemer has served almost exclusively as an invitation to litigation without much prospect of redress.” S. Issacharoff, P. Karlan, & R. Pildes, The Law of Democracy 886 (rev. 2d ed. 2002). The one case in which relief was provided (and merely preliminary relief, at that) did not involve the drawing of district lines;⁵ in all of the cases we are aware of involving that most common form of political gerrymandering, relief was denied.⁶ Moreover, although the case in which relief was provided seemingly involved the ne plus ultra of partisan manipulation, see n. 5, supra, we would be at a loss to explain why the Bandemer line should have been drawn just there, and should not have embraced several districting plans that were upheld despite allegations of extreme partisan discrimination, bizarrely shaped districts, and disproportionate results. See, e. g., Session v. Perry, 298 F. Supp. 2d 451 (ED Tex. 2004) (per curiam); O’Lear v. Miller, 222 F. Supp. 2d 850 (ED Mich.), summarily aff’d, 537 U. S. 997 (2002); Badham v. Eu, 694 F. Supp. 664, 670 (ND Cal. 1988), summarily aff’d, 488 U. S. 1024 (1989). To think that this lower court jurisprudence has brought forth “judicially discernible and manageable standards” would be fantasy.

Eighteen years of judicial effort with virtually nothing to show for it justify us in revisiting the question whether the standard promised by Bandemer exists. As the following discussion reveals, no judicially discernible and manageable standards for adjudicating political gerrymandering claims have emerged. Lacking them, we must conclude that political gerrymandering claims are nonjusticiable and that Ban-demer was wrongly decided.

A

We begin our review of possible standards with that proposed by Justice White’s plurality opinion in Bandemer because, as the narrowest ground for our decision in that case, it has been the standard employed by the lower courts. The plurality concluded that a political gerrymandering claim could succeed only where plaintiffs showed “both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.” 478 U. S., at 127. As to the intent element, the plurality acknowledged that “[a]s long as redistricting is done by a legislature, it should not be very difficult to prove that the likely political consequences of the reapportionment were intended.” Id., at 129. However, the effects prong was significantly harder to satisfy. Relief could not be based merely upon the fact that a group of persons banded together for political purposes had failed to achieve representation commensurate with its numbers, or that the apportionment scheme made its winning of elections more difficult. Id., at 132. Rather, it would have to be shown that, taking into account a variety of historic factors and projected election results, the group had been “denied its chance to effectively influence the political process” as a whole, which could be achieved even without electing a candidate. Id., at 132-133. It would not be enough to establish, for example, that Democrats had been “placed in a district with a supermajority of other Democratic voters” or that the district “departs from pre-existing political boundaries.” Id., at 140-141. Rather, in a challenge to an individual district the inquiry would focus “on the opportunity of members of the group to participate in party deliberations in the slating and nomination of candidates, their opportunity to register and vote, and hence their chance to directly influence the election returns and to secure the attention of the winning candidate.” Id., at 133. A statewide challenge, by contrast, would involve an analysis of “the voters’ direct or indirect influence on the elections of the state legislature as a whole.” Ibid, (emphasis added). With what has proved to be a gross understatement, the plurality acknowledged this was “of necessity a difficult inquiry.” Id., at 143.

In her Bandemer concurrence, Justice O’Connor predicted that the plurality’s standard “will over time either prove unmanageable and arbitrary or else evolve towards some loose form of proportionality.” Id., at 155 (opinion concurring in judgment, joined by Burger, C. J., and Rehnquist, J.). A similar prediction of unmanageability was expressed in Justice Powell’s opinion, making it the prognostication of a majority of the Court. See id., at 171 (“The . . . most basic flaw in the plurality’s opinion is its failure to enunciate any standard that affords guidance to legislatures and courts”). That prognostication has been amply fulfilled.

. In the lower courts, the legacy of the plurality’s test is one long record of puzzlement and consternation. See, e. g., Session, supra, at 474 (“Throughout this case we have borne witness to the powerful, conflicting forces nurtured by Ban-demer’s holding that the judiciary is to address ‘excessive’ partisan line-drawing, while leaving the issue virtually unenforceable”); Vieth I, 188 F. Supp. 2d, at 544 (noting that the “recondite standard enunciated in Bandemer offers little concrete guidance”); Martinez v. Bush, 234 F. Supp. 2d 1275, 1352 (SD Fla. 2002) (three-judge court) (Jordan, J., concurring) (the “lower courts continue to struggle in an attempt to interpret and apply the ‘discriminatory effect’ prong of the [Bandemer] standard”); O’Lear, supra, at 855 (describing Bandemer’s standard for assessing discriminatory effect as “somewhat murky”). The test has been criticized for its indeterminacy by a host of academic commentators. See, e. g., L. Tribe, American Constitutional Law § 13-9, p. 1083 (2d ed. 1988) (“Neither Justice White’s nor Justice Powell’s approach to the question of partisan apportionment gives any real guidance to lower courts forced to adjudicate this issue...”); Still, Hunting of the Gerrymander, 38 UCLA L. Rev. 1019, 1020 (1991) (noting that the plurality opinion has “confounded legislators, practitioners, and academics alike”); Schuck, The Thickest Thicket: Partisan Gerrymandering and Judicial Regulation of Politics, 87 Colum. L. Rev. 1325, 1365 (1987) (noting that the Bandemer plurality’s standard requires judgments that are “largely subjective and beg questions that lie at the heart of political competition in a democracy”); Issacharoff, Judging Politics: The Elusive Quest for Judicial Review of Political Fairness, 71 Texas L. Rev. 1643, 1671 (1993) (“Bandemer begot only confusion”); Grofman, An Expert Witness Perspective on Continuing and Emerging Voting Rights Controversies, 21 Stetson L. Rev. 783, 816 (1992) (“[A]s far as I am aware I am one of only two people who believe that Bandemer makes sense. Moreover, the other person, Daniel Lowenstein, has a diametrically opposed view as to what the plurality opinion means”). Because this standard was misguided when proposed, has not been improved in subsequent application, and is not even defended before us today by the appellants, we decline to affirm it as a constitutional requirement.

B

Appellants take a run at enunciating their own workable standard based on Article I, §2, and the Equal Protection Clause. We consider it at length not only because it reflects the litigant’s view as to the best that can be derived from 18 years of experience, but also because it shares many features with other proposed standards, so that what is said of it may be said of them as well. Appellants’ proposed standard retains the two-pronged framework of the Bandemer plurality — intent plus effect — but modifies the type of showing sufficient to satisfy each.

To satisfy appellants’ intent standard, a plaintiff must “show that the mapmakers acted with a predominant intent to achieve partisan advantage,” which can be shown “by direct evidence or by circumstantial evidence that other neutral and legitimate redistricting criteria were subordinated to the goal of achieving partisan advantage.” Brief for Appellants 19 (emphasis added). As compared with the Bande-mer plurality’s test of mere intent to disadvantage the plaintiff’s group, this proposal seemingly makes the standard more difficult to meet — but only at the expense of making the standard more indeterminate.

“Predominant intent” to disadvantage the plaintiff’s political group refers to the relative importance of that goal as compared with all the other goals that the map seeks to pursue — contiguity of districts, compactness of districts, observance of the lines of political subdivision, protection of incumbents of all parties, cohesion of natural racial and ethnic neighborhoods, compliance with requirements of the Voting Rights Act of 1965 regarding racial distribution, etc. Appellants contend that their intent test must be discernible and manageable because it has been borrowed from our racial gerrymandering cases. See Miller v. Johnson, 515 U. S. 900 (1995); Shaw v. Reno, 509 U. S. 630 (1993). To begin with, in a very important respect that is not so. In the racial gerrymandering context, the predominant intent test has been applied to the challenged district in which the plaintiffs voted. See Miller, supra; United States v. Hays, 515 U. S. 737 (1995). Here, however, appellants do not assert that an apportionment fails their intent test if any single district does so. Since “it would be quixotic to attempt to bar state legislatures from considering politics as they redraw district lines,” Brief for Appellants 3, appellants propose a test that is satisfied only when “partisan advantage was the predominant motivation behind the entire statewide plan,” id., at 32 (emphasis added). Vague as the “predominant motivation” test might be when used to evaluate single districts, it all but evaporates when applied statewide. Does it mean, for instance, that partisan intent must outweigh all other goals — contiguity, compactness, preservation of neighborhoods, etc. — statewide? And how is the statewide “outweighing” to be determined? If three-fifths of the map’s districts forgo the pursuit of partisan ends in favor of strictly observing political-subdivision lines, and only two-fifths ignore those lines to disadvantage the plaintiffs, is the observance of political subdivisions the “predominant” goal between those two? We are sure appellants do not think so.

Even within the narrower compass of challenges to a single district, applying a “predominant intent” test to racial gerrymandering is easier and less disruptive. The Constitution clearly contemplates districting by political entities, see Article I, § 4, and unsurprisingly that turns out to be root- and-branch a matter of politics. See Miller, supra, at 914 (“[R]edistrieting in most cases will implicate a political calculus in which various interests compete for recognition .. .”); Shaw, supra, at 662 (White, J., dissenting) (“[Districting inevitably is the expression of interest group politics . . .”); Gaffney v. Cummings, 412 U. S. 735, 753 (1973) (“The reality is that districting inevitably has and is intended to have substantial political consequences”). By contrast, the purpose of segregating voters on the basis of race is not a lawful one, and is much more rarely encountered. Determining whether the shape of a particular district is so substantially affected by the presence of a rare and constitutionally suspect motive as to invalidate it is quite different from determining whether it is so substantially affected by the excess of an ordinary and lawful motive as to invalidate it. Moreover, the fact that partisan districting is a lawful and common practice means that there is almost always room for an election-impeding lawsuit contending that partisan advantage was the predominant motivation; not so for claims of racial gerrymandering. Finally, courts might be justified in accepting a modest degree of unmanageability to enforce a constitutional command which (like the Fourteenth Amendment obligation to refrain from racial discrimination) is clear; whereas they are not justified in inferring a judicially enforceable constitutional obligation (the obligation not to apply too much partisanship in districting) which is both dubious and severely unmanageable. For these reasons, to the extent that our racial gerrymandering cases represent a model of discernible and manageable standards, they provide no comfort here.

The effects prong of appellants’ proposal replaces the Ban-demer plurality’s vague test of “denied its chance to effectively influence the political process,” 478 U. S., at 132-133, with criteria that are seemingly more specific. The. requisite effect is established when “(1) the plaintiffs show that the districts systematically ‘pack’ and ‘crack’ the rival party’s voters,⁷ and (2) the court’s examination of the ‘totality of circumstances’ confirms that the map can thwart the plaintiffs’ ability to translate a majority of votes into a majority of seats.” Brief for Appellants 20 (emphasis and footnote added). This test is loosely based on our cases applying § 2 of the Voting Rights Act of 1965, 42 U. S. C. § 1973, to discrimination by race, see, e. g., Johnson v. De Grandy, 512 U. S. 997 (1994). But a person’s politics is rarely as readily discernible — and never as permanently discernible — as a person’s race. Political affiliation is not an immutable characteristic, but may shift from one election to the next; and even within a given election, not all voters follow the party line. We dare say (and hope) that the political party which puts forward an utterly incompetent candidate will lose even in its registration stronghold. These facts make it impossible to assess the effects of partisan gerrymandering, to fashion a standard for evaluating a violation, and finally to craft a remedy. See Bandemer, supra, at 156 (O’Connor, J., concurring in judgment).⁸

Assuming, however, that the effects of partisan gerrymandering can be determined, appellants’ test would invalidate the districting only when it prevents a majority of the electorate from electing a majority of representatives. Before considering whether this particular standard is judicially manageable we question whether it is judicially discernible in the sense of being relevant to some constitutional violation. Deny it as appellants may (and do), this standard rests upon the principle that groups (or at least political-action groups) have a right to proportional representation. But the Constitution contains no such principle. It guarantees equal protection of the law to persons, not equal representation in government to equivalently sized groups. It nowhere says that farmers or urban dwellers, Christian fundamentalists or Jews, Republicans or Democrats, must be accorded political strength proportionate to their numbers.⁹

Even if the standard were relevant, however, it is not judicially manageable. To begin with, how is a party’s majority status to be established? Appellants propose using the results of statewide races as the benchmark of party support. But as their own complaint describes, in the 2000 Pennsylvania statewide elections some Republicans won and some Democrats won. See Juris. Statement 137a-138a (describing how Democratic candidates received more votes for President and auditor general, and Republicans received more votes for United States Senator, attorney general, and treasurer). Moreover, to think that majority status in statewide races establishes majority status for district contests, one would have to believe that the only factor determining voting behavior at all levels is political affiliation. That is assuredly not true. As one law review comment has put it:

“There is no statewide vote in this country for the House of Representatives or the state legislature. Rather, there are separate elections between separate candidates in separate districts, and that is all there is. If the districts change, the candidates change, their strengths and weaknesses change, their campaigns change, their ability to raise money changes, the issues change — everything changes. Political parties do not compete for the highest statewide vote totals or the highest mean district vote percentages: They compete for specific seats.” Lowenstein & Steinberg, The Quest for Legislative Districting in the Public Interest: Elusive or Illusory, 33 UCLA L. Rev. 1, 59-60 (1985).

See also Schuck, Partisan Gerrymandering: A Political Problem Without Judicial Solution, in Political Gerrymandering and the Courts 240, 241 (B. Grofman ed. 1990).

But if we could identify a majority party, we would find it impossible to ensure that that party wins a majority of seats — -unless we radically revise the States’ traditional structure for elections. In any winner-take-all district system, there can be no guarantee, no matter how the district lines are drawn, that a majority of party votes statewide will produce a majority of seats for that party. The point is proved by the 2000 congressional elections in Pennsylvania, which, according to appellants’ own pleadings, were conducted under a judicially drawn district map “free from partisan gerrymandering.” Juris. Statement 137a. On this “neutral playing fiel[d],” the Democrats’ statewide majority of the major-party vote (50.6%) translated into a minority of seats (10, versus 11 for the Republicans). Id., at 133a, 137a. Whether by reason of partisan districting or not, party constituents may always wind up “packed” in some districts and “cracked” throughout others. See R. Dixon, Democratic Representation 462 (1968) (“All Districting Is ‘Gerrymandering’”); Schuck, 87 Colum. L. Rev., at 1359. Consider, for example, a legislature that draws district lines with no objectives in mind except compactness and respect for the lines of political subdivisions. Under that system, political groups that tend to cluster (as is the case with Democratic voters in cities) would be systematically affected by what might be called a “natural” packing effect. See Bandemer, 478 U. S., at 159 (O’Connor, J., concurring in judgment).

Our one-person, one-vote cases, see Reynolds v. Sims, 377 U. S. 533 (1964); Wesberry v. Sanders, 376 U. S. 1 (1964), have no bearing upon this question, neither in principle nor in practicality. Not in principle, because to say that each individual must have an equal say in the selection of representatives, and hence that a majority of individuals must have a majority say, is not at all to say that each discernible group, whether farmers or urban dwellers or political parties, must have representation equivalent to its numbers. And not in practicality, because the easily administrable standard of population equality adopted by Wesberry and Reynolds enables judges to decide whether a violation has occurred (and to remedy it) essentially on the basis of three readily determined factors — where the plaintiff lives, how many voters are in his district, and how many voters are in other districts; whereas requiring judges to decide whether a district-ing system will produce a statewide majority for a majority party casts them forth upon a sea of imponderables, and asks them to make determinations that not even election experts can agree upon.

For these reasons, we find appellants’ proposed standards neither discernible nor manageable.

C

For many of the same reasons, we also reject the standard suggested by Justice Powell in Bandemer. He agreed with the plurality that a plaintiff should show intent and effect, but believed that the ultimate inquiry ought to focus on whether district boundaries had been drawn solely for partisan ends to the exclusion of “all other neutral factors relevant to the fairness of redistricting.” 478 U. S., at 161 (opinion concurring in part and dissenting in part); see also id., at 164-165. Under that inquiry, the courts should consider numerous factors, though “[n]o one factor should be disposi-tive.” Id., at 173. The most important would be “the shapes of voting districts and adherence to established political subdivision boundaries.” Ibid. “Other relevant considerations include the nature of the legislative procedures by which the apportionment law was adopted and legislative history reflecting contemporaneous legislative goals.” Ibid. These factors, which “bear directly on the fairness of a redistricting plan,” combined with “evidence concerning population disparities and statistics tending to show vote dilution,” make out a claim of unconstitutional partisan gerrymandering. Ibid.

While Justice Powell rightly criticized the Bandemer plurality for failing to suggest a constitutionally based, judicially manageable standard, the standard proposed in his opinion also falls short of the mark. It is essentially a totality-of-the-eircumstances analysis, where all conceivable factors, none of which is dispositive, are weighed with an eye to ascertaining whether the particular gerrymander has gone too far — or, in Justice Powell’s terminology, whether it is not “fair.” “Fairness” does not seem to us a judicially manageable standard. Fairness is compatible with noncon-tiguous districts, it is compatible with districts that straddle political subdivisions, and it is compatible with a party’s not winning the number of seats that mirrors the proportion of its vote. Some criterion more solid and more demonstrably met than that seems to us necessary to enable the state legislatures to discern the limits of their districting discretion, to meaningfully constrain the discretion of the courts, and to win public acceptance for the courts’ intrusion into a process that is the very foundation of democratic decisionmaking.

IV

We turn next to consideration of the standards proposed by today’s dissenters. We preface it with the observation that the mere fact that these four dissenters come up with three different standards — all of them different from the two proposed in Bandemer and the one proposed here by appellants — goes a long way to establishing that there is no constitutionally discernible standard.

1 The term “political gerrymander” has been defined as “[t]he practice of dividing a geographical area into electoral districts, often of highly irregular shape, to give one political party an unfair advantage by diluting the opposition’s voting strength.” Black’s Law Dictionary 696 (7th ed. 1999).

2 The plaintiffs apparently never amended their complaint to allege that Act 34 was a political gerrymander, yet the District Court’s decision in Vieth III resolved that claim on the merits. Because subject-matter jurisdiction is not implicated and neither party has raised the point, we assume that the District Court deemed the plaintiffs’ original complaint to have been constructively amended.

3 Article I, §4, provides as follows:

“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”

4 The States, of course, have taken their own steps to prevent abusive districting practices. A number have adopted standards for redistricting, and measures designed to insulate the process from politics. See, e. g., Iowa Code §42.4(5) (2003); N. J. Const., Art. II, §2; Haw. Rev. Stat. §25-2 (1993); Idaho Code §72-1506 (1948-1999); Me. Rev. Stat. Ann., Tit. 21-A, §§1206, 1206-A (West Supp. 2003); Mont. Code Ann. §5-1-115 (2003); Wash. Rev. Code §44.05.090 (1994).

5 See Republican Party of North Carolina v. Martin, 980 F. 2d 943 (CA4 1992) (upholding denial of Federal Rule of Civil Procedure 12(b)(6) judgment for the defendants); Republican Party of North Carolina v. North Carolina State Bd. of Elections, 27 F. 3d 563 (CA4 1994) (unpublished opinion) (upholding, as modified, a preliminary injunction). Martin dealt with North Carolina’s system of electing superior court judges statewide, a system that had resulted in the election of only a single Republican judge since 1900. 980 F. 2d, at 948. Later developments in the ease are described in n. 8, infra.

6 For cases in which courts rejected prayers for relief under Davis v. Bandemer, 478 U. S. 109 (1986), see, e. g., Duckworth v. State Administrative Bd. of Election Laws, 332 F. 3d 769 (CA4 2003); Smith v. Boyle, 144 F. 3d 1060 (CA7 1998); La Porte County Republican Central Comm. v. Board of Comm’rs of County of La Porte, 43 F. 3d 1126 (CA7 1994); Session v. Perry, 298 F. Supp. 2d 451 (ED Tex. 2004) (per curiam); Martinez v. Bush, 234 F. Supp. 2d 1275 (SD Fla. 2002) (three-judge panel); O’Lear v. Miller, 222 F. Supp. 2d 850 (ED Mich.), summarily aff’d, 537 U. S. 997 (2002); Marylanders for Fair Representation, Inc. v. Schaefer, 849 F. Supp. 1022 (Md. 1994) (three-judge panel); Terrazas v. Slagle, 821 F. Supp. 1162 (WD Tex. 1993) (three-judge panel); Pope v. Blue, 809 F. Supp. 392 (WDNC) (three-judge panel), summarily aff’d, 506 U. S. 801 (1992); Illinois Legislative Redistricting Comm’n v. LaPaille, 782 F. Supp. 1272 (ND Ill. 1992); Fund for Accurate and Informed Representation, Inc. v. Weprin, 796 F. Supp. 662 (NDNY) (three-judge panel), summarily aff’d, 506 U. S. 1017 (1992); Holloway v. Hechler, 817 F. Supp. 617 (SD W. Va. 1992) (three-judge panel), summarily aff’d, 507 U. S. 956 (1993); Hastert v. State Bd. of Elections, 777 F. Supp. 634 (ND Ill. 1991) (three-judge panel); Anne Arundel County Republican Central Comm. v. State Administrative Bd. of Election Laws, 781 F. Supp. 394 (Md. 1991) (three-judge panel), summarily aff’d, 504 U. S. 938 (1992); Republican Party of Virginia v. Wilder, 774 F. Supp. 400 (WD Va. 1991) (three-judge panel); Badham v. Eu, 694 F. Supp. 664, 670 (ND Cal. 1988), summarily aff’d, 488 U. S. 1024 (1989); In re 2003 Legislative Apportionment of House of Representatives, 2003 ME 81, 827 A. 2d 810; McClure v. Secretary of Commonwealth, 436 Mass. 614, 766 N. E. 2d 847 (2002); Legislative Redistricting Cases, 331 Md. 574, 629 A. 2d 646 (1993); Kenai Peninsula Borough v. State, 743 P. 2d 1352 (Alaska 1987).

7 “Packing” refers to the practice of filling a district with a supermajority of a given group or party. “Cracking” involves the splitting of a group or party among several districts to deny that group or party a majority in any of those districts.

8 A delicious illustration of this is the one case we have found — alluded to above — that provided relief under Bandemer. See n. 5, supra. In Republican Party of North Carolina v. Hunt, No. 94-2410, 1996 WL 60439 (CA4, Feb. 12, 1996) (per curiam) (unpublished), judgt. order reported at 77 F. 3d 470, the District Court, after a trial with no less than 311 stipulations by the parties, 132 witness statements, approximately 300 exhibits, and 2 days of oral argument, concluded that North Carolina’s system of electing superior court judges on a statewide basis “had resulted in Republican candidates experiencing a consistent and pervasive lack of success and exclusion from the electoral process as a whole and that these effects were likely to continue unabated into the future.” 1996 WL 60439, at *1. In the elections for superior court judges conducted just five days after this pronouncement, “every Republican candidate standing for the office of superior court judge was victorious at the state level,” ibid., a result which the Fourth Circuit thought (with good reason) “directly at odds with the recent prediction by the district court,” id., at *2, causing it to remand the case for reconsideration.

9 The Constitution also does not share appellants’ alarm at the asserted tendency of partisan gerrymandering to create more partisan representatives. Assuming that assertion to be true, the Constitution does not answer the question whether it is better for Democratic voters to have their State’s congressional delegation include 10 wishy-washy Democrats (because Democratic voters are “effectively” distributed so as to constitute bare majorities in many districts), or 5 hardcore Democrats (because Democratic voters are tightly packed in a few districts). Choosing the former “dilutes” the vote of the radical Democrat; choosing the latter does the same to the moderate. Neither Article I, §2, nor the Equal Protection Clause takes sides in this dispute.