Cite as: 588 U. S. ____ (2019)
19
KAGAN, J., dissenting
actual precinct-level votes from past elections to determine
a partisan outcome (i.e., the number of Democratic and
Republican seats that map produces). Suppose we now
have 1,000 maps, each with a partisan outcome attached
to it. We can line up those maps on a continuum—the
most favorable to Republicans on one end, the most favorable to Democrats on the other.3 We can then find the
median outcome—that is, the outcome smack dab in the
center—in a world with no partisan manipulation. And
we can see where the State’s actual plan falls on the spectrum—at or near the median or way out on one of the
tails? The further out on the tail, the more extreme the
partisan distortion and the more significant the vote
dilution. See generally Brief for Eric S. Lander as Amicus
Curiae 7–22.
Using that approach, the North Carolina plaintiffs
offered a boatload of alternative districting plans—all
showing that the State’s map was an out-out-out-outlier.
One expert produced 3,000 maps, adhering in the way
described above to the districting criteria that the North
Carolina redistricting committee had used, other than
partisan advantage. To calculate the partisan outcome of
those maps, the expert also used the same election data (a
composite of seven elections) that Hofeller had employed
when devising the North Carolina plan in the first instance. The results were, shall we say, striking. Every
single one of the 3,000 maps would have produced at least
one more Democratic House Member than the State’s
actual map, and 77% would have elected three or four
more. See Rucho, 318 F. Supp. 3d, at 875–876, 894; App.
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3 As I’ll discuss later, this distribution of outcomes provides what the
majority says does not exist—a neutral comparator for the State’s own
plan. See ante, at 16–19; supra, at 14; infra, at 22–25. It essentially
answers the question: In a State with these geographic features and
this distribution of voters and this set of districting criteria—but
without partisan manipulation—what would happen?