Cite as: 588 U. S. ____ (2019)
17
Opinion of the Court
43–51 (2013). That meant that a party could garner nearly
half of the vote statewide and wind up without any seats
in the congressional delegation. The Whigs in Alabama
suffered that fate in 1840: “their party garnered 43 percent of the statewide vote, yet did not receive a single
seat.” Id., at 48. When Congress required single-member
districts in the Apportionment Act of 1842, it was not
out of a general sense of fairness, but instead a
(mis)calculation by the Whigs that such a change would
improve their electoral prospects. Id., at 43–44.
Unable to claim that the Constitution requires proportional representation outright, plaintiffs inevitably ask the
courts to make their own political judgment about how
much representation particular political parties deserve—
based on the votes of their supporters—and to rearrange
the challenged districts to achieve that end. But federal
courts are not equipped to apportion political power as a
matter of fairness, nor is there any basis for concluding
that they were authorized to do so. As Justice Scalia put
it for the plurality in Vieth:
“ ‘Fairness’ does not seem to us a judicially manageable standard. . . . 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.”
541 U. S., at 291.
The initial difficulty in settling on a “clear, manageable
and politically neutral” test for fairness is that it is not
even clear what fairness looks like in this context. There
is a large measure of “unfairness” in any winner-take-all
system. Fairness may mean a greater number of competitive districts. Such a claim seeks to undo packing and