Cite as: 588 U. S. ____ (2019)
13
KAGAN, J., dissenting
policy objectives”). In both those ways, partisan gerrymanders of the kind we confront here undermine the
protections of “democracy embodied in the First Amendment.” Elrod v. Burns, 427 U. S. 347, 357 (1976) (internal
quotation marks omitted).
Though different Justices have described the constitutional harm in diverse ways, nearly all have agreed on this
much: Extreme partisan gerrymandering (as happened in
North Carolina and Maryland) violates the Constitution.
See, e.g., Vieth, 541 U. S., at 293 (plurality opinion) (“[A]n
excessive injection of politics [in districting] is unlawful”
(emphasis deleted)); id., at 316 (opinion of Kennedy, J.)
(“[P]artisan gerrymandering that disfavors one party is
[im]permissible”); id., at 362 (BREYER, J., dissenting)
(Gerrymandering causing political “entrenchment” is a
“violat[ion of] the Constitution’s Equal Protection
Clause”); Davis v. Bandemer, 478 U. S. 109, 132 (1986)
(plurality opinion) (“[U]nconstitutional discrimination”
occurs “when the electoral system is arranged in a manner
that will consistently degrade [a voter’s] influence on the
political process”); id., at 165 (Powell, J., concurring)
(“Unconstitutional gerrymandering” occurs when “the
boundaries of the voting districts have been distorted
deliberately” to deprive voters of “an equal opportunity to
participate in the State’s legislative processes”). Once
again, the majority never disagrees; it appears to accept
the “principle that each person must have an equal say in
the election of representatives.” Ante, at 20. And indeed,
without this settled and shared understanding that cases
like these inflict constitutional injury, the question of
whether there are judicially manageable standards for
resolving them would never come up.
II
So the only way to understand the majority’s opinion is
as follows: In the face of grievous harm to democratic