Cite as: 588 U. S. ____ (2019)
25
KAGAN, J., dissenting
ideal of proportional representation commanded another
Republican seat. It invalidated that district because the
quest for partisan gain made the State override its own
political geography and districting criteria. So much,
then, for the impossibility of neutrality.
The majority’s sole response misses the point. According to the majority, “it does not make sense to use” a
State’s own (non-partisan) districting criteria as the baseline from which to measure partisan gerrymandering
because those criteria “will vary from State to State and
year to year.” Ante, at 27. But that is a virtue, not a
vice—a feature, not a bug. Using the criteria the State
itself has chosen at the relevant time prevents any judicial
predilections from affecting the analysis—exactly what the
majority claims it wants. At the same time, using those
criteria enables a court to measure just what it should: the
extent to which the pursuit of partisan advantage—by
these legislators at this moment—has distorted the State’s
districting decisions. Sure, different non-partisan criteria
could result, as the majority notes, in different partisan
distributions to serve as the baseline. Ante, at 28. But
that in itself raises no issue: Everyone agrees that state
officials using non-partisan criteria (e.g., must counties be
kept together? should districts be compact?) have wide
latitude in districting. The problem arises only when
legislators or mapmakers substantially deviate from the
baseline distribution by manipulating district lines for
partisan gain. So once again, the majority’s analysis
falters because it equates the demand to eliminate partisan gerrymandering with a demand for a single partisan
distribution—the one reflecting proportional representation. See ante, at 16–17. But those two demands are
different, and only the former is at issue here.
The majority’s “how much is too much” critique fares no
better than its neutrality argument. How about the following for a first-cut answer: This much is too much. By