16
RUCHO v. COMMON CAUSE
KAGAN, J., dissenting
A
Start with the standard the lower courts used. The
majority disaggregates the opinions below, distinguishing
the one from the other and then chopping up each into “a
number of ‘tests.’ ” Ante, at 22; see ante, at 22–30. But in
doing so, it fails to convey the decisions’ most significant—
and common—features. Both courts focused on the harm
of vote dilution, see supra, at 11, though the North Carolina court mostly grounded its analysis in the Fourteenth
Amendment and the Maryland court in the First. And
both courts (like others around the country) used basically
the same three-part test to decide whether the plaintiffs
had made out a vote dilution claim. As many legal standards do, that test has three parts: (1) intent; (2) effects;
and (3) causation. First, the plaintiffs challenging a districting plan must prove that state officials’ “predominant
purpose” in drawing a district’s lines was to “entrench
[their party] in power” by diluting the votes of citizens
favoring its rival. Rucho, 318 F. Supp. 3d, at 864 (quoting
Arizona State Legislature, 576 U. S., at ___ (slip op., at 1)).
Second, the plaintiffs must establish that the lines drawn
in fact have the intended effect by “substantially” diluting
their votes. Lamone, 348 F. Supp. 3d, at 498. And third,
if the plaintiffs make those showings, the State must come
up with a legitimate, non-partisan justification to save its
map. See Rucho, 318 F. Supp. 3d, at 867.2 If you are a
lawyer, you know that this test looks utterly ordinary. It
is the sort of thing courts work with every day.
Turn now to the test’s application. First, did the North
Carolina and Maryland districters have the predominant
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2 Neither North Carolina nor Maryland offered much of an alternative explanation for the evidence that the plaintiffs put forward.
Presumably, both States had trouble coming up with something. Like
the majority, see ante, at 25, I therefore pass quickly over this part of
the test.