S1: For the first time ever this court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities and not just any constitutional violation. The partisan gerrymander is in these cases deprived citizens of the most fundamental of their constitutional rights. The rights to participate equally in the political process to join with others to advance political beliefs and to choose their political representatives. In doing so these gerrymander is dishonored our democracy turning upside down the core American idea that all governmental power. Derives from the people. These gerrymandered enabled politicians to entrench themselves in office against voters preferences they promoted partisanship above respect for the popular will. They encouraged a politics of polarization and dysfunction left unchecked. As the court does today JERRY MANDERS like these may irreparably damage our system of government. Consider what happened in these cases what politicians in North Carolina and Maryland did to entrench themselves in political office regardless of what voters wanted. And as I relate some of these facts which the chief justice has also related ask yourselves one simple question Is this how American democracy is supposed to work. In North Carolina Republican legislators voted to create a district and plan that would ensure that Republicans captured 10 of the 13 seats in the state’s congressional delegation the mapmaker did everything he could to carry out those instructions. Pretty much guaranteeing that Republicans would get 10 seats no matter what their statewide vote the district in committee chair explained as the chief justice told you that this was the way the map was drawn because well because it’s just not possible to draw a map with eleven Republicans. He also announced I think electing Republicans is better than electing Democrats. So I drew this map to help foster what I think is better for the country. Now usually we think that choice is better left to the American people but so far the map has worked just as the Republican legislators and mapmakers planned tend to three. Even though Democrats have won up to 50 percent of the statewide vote in Maryland much the same thing happened. But here it was Democrats creating the voter proof map for years Maryland had six reliably Democratic districts and two reliably Republican districts reflecting the two areas of the state in which Republicans form a natural majority. But the Democrats who control the state House and legislature decided to press their advantage and a race one of the Republican districts. They moved as many as 700000 Marylanders into new districts for the sole purpose of turning a Republican district into a safe Democratic one. And they too succeeded. Since the plan went into effect the district has always produced a Democrat even in a way of Republican year as in North Carolina. The manipulation of district lines for partisan gain ensured that one party came away with more seats than they otherwise could have than they would have if the voters preferences controlled now go back to the question I asked. Is that how American democracy is supposed to work. I have yet to meet the person who thinks so. If there is a single idea that made our nation it’s this one. The people are sovereign. James Madison wrote The power is in the people over the government and not in the government over the people. Free and Fair elections are the key to that vision. The people get to choose their representatives and then they get to decide whether to keep them. Election day is what links the people to their representatives and gives the people their sovereign power. That day is the foundation of democratic governance and partisan gerrymandering can make it meaningless as this court has long recognized at its most extreme as in North Carolina and Maryland the practice amounts to rigging elections by drawing districts to maximize the power of some voters and minimize the power of others. A party in office at the right time can keep itself there for a decade or more. No matter what the voters would prefer the core principle of republican government is that the voters should choose their representatives not the other way around. Partisan gerrymandering turns it the other way around. By that mechanism politicians can cherry pick voters to ensure their their re-election and then the power becomes not the people over the government. But instead the government over the people and in thus subverting democracy. Partisan gerrymandering of the kind here violates individual’s constitutional rights as well. Once again this court has long recognized that fact gerrymander is like these violate the 14th Amendment by making the votes of some people count for less than those of others. And these gerrymandered violate the First Amendment too because they effectively penalize people for their political views and associations. Nearly every justice who has served on this court during the last several decades has agreed with everything I’ve just said and notably today’s majority doesn’t contest it the majority just says it can’t do anything about the problem. In the face of grievous harm to democratic governance and flagrant infringements on constitutional rights in the face of escalating partisan manipulation whose compatibility with this nation’s values and law. No one defends the majority declares that it can’t provide a remedy because it can’t find a manageable legal standard to apply the majority as you’ve just heard it gives two reasons for thinking so. First it says there is no neutral baseline from which to measure injury. Partisan gerrymandering claims the majority contends will inevitably require courts to decide for themselves what electoral outcomes are fair so they can measure the results of gerrymandering against that ideal. And second the majority argues that after doing that a court will have no way to answer the question How much is too much how far from the ideal a gerrymander must go to prompt a constitutional remedy. Without such a standard the majority worries courts could become embroiled in every district in decision but what the majority says can’t be done. Has been done. It’s not just possible. Again and again we’ve seen it happen over the past several years. Federal courts across the country including but not exclusively in the decisions below have largely converged on a standard for adjudicating partisan gerrymandering claims. And that standard avoids both of the problems that the majority says leave it so hamstrung. The standard is eminently legal in nature. Like many legal tests it asks about intent and effects. First the test requires a plaintiff to prove that the predominant the predominant purpose of state officials in drawing the mat was to entrench their party in power by diluting the votes of citizens favoring its rival. And second the plaintiffs must establish that the lines drawn in fact have the intended effect by substantially diluting those votes and using that standard. The district courts didn’t have to choose among competing visions of electoral fairness proportional representation or any other. They didn’t try to compare the state’s actual map to an ideally fair one. Instead they used the state’s own criteria for electoral fairness. Except that is for naked partisan gain. The courts looked at the difference between what the state did and what the state would have done. If politicians hadn’t been intent on partisan advantage. So the baseline or touchstone isn’t a judge’s philosophizing as the majority thinks. But the state’s own district and criteria whatever that might be all the courts did was determine how far the state had gone off that state determine track because of its politicians efforts to maintain their hold on political power and deciding whether the state went too far off that track is also not so hard. Think about these two cases. North Carolina went too far off that track. Maryland went too far off that track.
S2: Not even the majority disputes those conclusions and more generally courts ask about whether harms are substantial all the time in all kinds of legal contexts. The question here whether vote dilution is substantial is no less subset susceptible of judicial resolution and the standard the district courts used to set the bar high that standard enabled courts to intervene only in the most extreme partisan gerrymander. It made sure that courts would not meddle in state electoral politics. But still that they would act to protect democracy and restore voting rights when most needed. In all these respects the district court’s decisions below they’re worth a read. They are detailed and thorough and painstaking. They evaluated with immense care the legal arguments and factual evidence the parties presented. They used neutral and manageable and strict legal standards. They had not a shred of politics about them on every page. They refute the majority’s idea that the law provides insufficient tools to remedy the blatant constitutional injuries. These cases present the courts below did what anyone would want a decision maker to do when so much hangs in the balance. They looked hard at the facts and law and they went where the facts and law led them. They did not bet America’s future as the majority today does on the idea that districting plans constructed with so much care to make electoral outcomes impervious to voting would somehow or other fall apart. They looked at the evidence about how those districts operated and they could reach only one conclusion by purposefully and substantially diluting the votes of citizens favoring their rivals. The politicians of one party had succeeded in entrenching themselves in office. They had beat democracy for many years. This court has understood its special responsibility to police district in decisions over 50 years ago we committed to providing judicial review in this sphere. Recognizing when we established the one person one vote rule that our oath and our office require no less. Of course our oath and office require us to vindicate all constitutional rights. But the need for judicial review is at its most urgent in cases like these. For here politicians incentives conflict with voters entitlements leaving citizens without any political remedy for their constitutional harms. Those arms arrive because politicians want to stay in office. No one can look to them for effective relief the gerrymander is here and others like them violated the constitutional rights of many hundreds of thousands of American citizens. Those voters Republicans and one case Democrats in the other did not have an equal opportunity to participate in the political process. Their votes counted for far less than they should have just because of their partisan affiliation. When faced with such constitutional wrongs courts must intervene. It is one of the oldest tenants of our legal system but it is emphatically the province and duty of the judicial department to say what the law is and of all times to abandon the court’s duty to declare the law. This was not the one the practices challenged in these cases imperil our system of government. Part of the court’s role in that system is to defend its foundations. None is more important than free and fair elections with respect the deep sadness. Justices Ginsburg Breyer Sotomayor and I dissent.