Cite as: 588 U. S. ____ (2019)
27
Opinion of the Court
easier for supporters of Republican candidates to translate
their votes into seats,” thereby “enhanc[ing] the[ir] relative voice.” Id., at 933 (internal quotation marks omitted).
These cases involve blatant examples of partisanship
driving districting decisions. But the First Amendment
analysis below offers no “clear” and “manageable” way of
distinguishing permissible from impermissible partisan
motivation. The Common Cause court embraced that
conclusion, observing that “a judicially manageable
framework for evaluating partisan gerrymandering claims
need not distinguish an ‘acceptable’ level of partisan gerrymandering from ‘excessive’ partisan gerrymandering”
because “the Constitution does not authorize state redistricting bodies to engage in such partisan gerrymandering.” Id., at 851. The decisions below prove the prediction
of the Vieth plurality that “a First Amendment claim, if it
were sustained, would render unlawful all consideration of
political affiliation in districting,” 541 U. S., at 294, contrary to our established precedent.
C
The dissent proposes using a State’s own districting
criteria as a neutral baseline from which to measure how
extreme a partisan gerrymander is. The dissent would
have us line up all the possible maps drawn using those
criteria according to the partisan distribution they would
produce. Distance from the “median” map would indicate
whether a particular districting plan harms supporters of
one party to an unconstitutional extent. Post, at 18–19, 25
(opinion of KAGAN, J.).
As an initial matter, it does not make sense to use criteria that will vary from State to State and year to year as
the baseline for determining whether a gerrymander
violates the Federal Constitution. The degree of partisan
advantage that the Constitution tolerates should not turn
on criteria offered by the gerrymanderers themselves. It