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It is of course true that the threshold population sufficient to provide minority voters with an opportunity to elect their candidates of choice is elastic, and the proportions will likely shift in the future, as they have in the past. See Pildes 1527–1532 (explaining that blacks in the 1980s required well over 50% of the population in a district to elect the candidates of their choice, but that this number has gradually fallen to well below 50%); id., at 1527, n. 26 (stating that some courts went so far as to refer to 65% “as a ‘rule of thumb’ for the black population required to constitute a safe district”). That is, racial polarization has declined, and if it continues downward the first Gingles condition will get easier to satisfy.

But this is no reason to create an arbitrary threshold; the functional approach will continue to allow dismissal of claims for districts with minority populations too small to demonstrate an ability to elect, and with “crossovers” too numerous to allow an inference of vote dilution in the first place. No one, for example, would argue based on the record of experience in this case that a district with a 25% black population would meet the first Gingles condition. And the third Gingles requirement, majority-bloc voting, may well provide an analytical limit to claims based on crossover districts. See LULAC, 548 U. S., at 490, n. 8 (Souter, J., concurring in part and dissenting in part) (noting the interrelationship of the first and third Gingles factors); see also post, at 1–5 (Breyer, J., dissenting) (looking to the third Gingles condition to suggest a mathematical limit to the minority population necessary for a cognizable crossover district). But whatever this limit may be, we have no need to set it here, since the respondent state officials have stipulated to majority-bloc voting, App. to Pet. for Cert. 130a. In sum, §2 addresses voting realities, and for practical purposes a 39%-minority district in which we know minorities have the potential to elect their preferred candidate is every bit as good as a 50%-minority district.

In fact, a crossover district is better. Recognizing crossover districts has the value of giving States greater flexibility to draw districting plans with a fair number of minority-opportunity districts, and this in turn allows for a beneficent reduction in the number of majority-minority districts with their “quintessentially race-conscious calculus,” De Grandy, 512 U. S., at 1020, thereby moderating reliance on race as an exclusive determinant in districting decisions, cf. Shaw v. Reno, 509 U. S. 630 (1993) . See also Pildes 1547–1548 (“In contrast to the Court’s concerns with bizarrely designed safe districts, it is hard to see how coalitional districts could ‘convey the message that political identity is, or should be, predominantly racial.’ … Coalitional districts would seem to encourage and require a kind of integrative, cross-racial political alliance that might be thought consistent with, even the very ideal of, both the VRA and the U. S. Constitution” (quoting Bush v. Vera, 517 U. S. 952, 980 (1996) )). A crossover is thus superior to a majority-minority district precisely because it requires polarized factions to break out of the mold and form the coalitions that discourage racial divisions.

III

A

The plurality’s contrary conclusion that §2 does not recognize a crossover claim is based on a fundamental misunderstanding of vote-dilution claims, a mistake epitomized in the following assessment of the crossover district in question:

“[B]ecause they form only 39 percent of the voting-age population in District 18, African-Americans standing alone have no better or worse opportunity to elect a candidate than does any other group of voters with the same relative voting strength [in District 18].” Ante, at 9–10.

See also ante, at 16 (“[In crossover districts,] minority voters have the same opportunity to elect their candidate as any other political group with the same relative voting strength”).

The claim that another political group in a particular district might have the same relative voting strength as the minority if it had the same share of the population takes the form of a tautology: the plurality simply looks to one district and says that a 39% group of blacks is no worse off than a 39% group of whites would be. This statement might be true, or it might not be, and standing alone it demonstrates nothing.

Even if the two 39% groups were assumed to be comparable in fact because they will attract sufficient crossover (and so should be credited with satisfying the first Gingles condition), neither of them could prove a §2 violation without looking beyond the 39% district and showing a disproportionately small potential for success in the State’s overall configuration of districts. As this Court has explained before, the ultimate question in a §2 case (that is, whether the minority group in question is being denied an equal opportunity to participate and elect) can be answered only by examining the broader pattern of districts to see whether the minority is being denied a roughly proportionate opportunity. See LULAC, 548 U. S., at 436–437. Hence, saying one group’s 39% equals another’s, even if true in particular districts where facts are known, does not mean that either, both, or neither group could show a §2 violation. The plurality simply fails to grasp that an alleged §2 violation can only be proved or disproved by looking statewide.

B

The plurality’s more specific justifications for its counterfactual position are no more supportable than its 39% tautology.

1

The plurality seems to suggest that our prior cases somehow require its conclusion that a minority population under 50% will never support a §2 remedy, emphasizing that Gingles spoke of a majority and referred to the requirement that minority voters have “ ‘the potential to elect’ ” their chosen representatives. Ante, at 10 (quoting, Gingles, 478 U. S., at 50, n. 17). It is hard to know what to make of this point since the plurality also concedes that we have explicitly and repeatedly reserved decision on today’s question. See LULAC, supra, at 443 (plurality opinion); De Grandy, 512 U. S., at 1009; Voinovich, 507 U. S., at 154; Growe, 507 U. S., at 41, n. 5; Gingles, supra, at 46–47, n. 12. In fact, in our more recent cases applying §2, Court majorities have formulated the first Gingles prong in a way more consistent with a functional approach. See LULAC, supra, at 430 (“[I]n the context of a challenge to the drawing of district lines, ‘the first Gingles condition requires the possibility of creating more than the existing number of reasonably compact districts with a sufficiently large minority population to elect candidates of its choice’ ” (quoting De Grandy, supra, at 1008)). These Court majorities get short shrift from today’s plurality.

In any event, even if we ignored Gingles’sreservation of today’s question and looked to Gingles’s “potential to elect” as if it were statutory text, I fail to see how that phrase dictates that a minority’s ability to compete must be singlehanded in order to count under §2. As explained already, a crossover district serves the same interest in obtaining representation as a majority-minority district; the potential of 45% with a 6% crossover promises the same result as 51% with no crossover, and there is nothing in the logic of §2 to allow a distinction between the two types of district.

In fact, the plurality’s distinction is artificial on its own terms. In the past, when black voter registration and black voter turnout were relatively low, even black voters with 55% of a district’s CVAP would have had to rely on crossover voters to elect their candidate of choice. See Pildes 1527–1528. But no one on this Court (and, so far as I am aware, any other court addressing it) ever suggested that reliance on crossover voting in such a district rendered minority success any less significant under §2, or meant that the district failed to satisfy the first Gingles factor. Nor would it be any answer to say that black voters in such a district, assuming unrealistic voter turnout, theoretically had the “potential” to elect their candidate without crossover support; that would be about as relevant as arguing in the abstract that a black CVAP of 45% is potentially successful, on the assumption that black voters could turn out en masse to elect the candidate of their choice without reliance on crossovers if enough majority voters stay home.

2

The plurality is also concerned that recognizing the “potential” of anything under 50% would entail an exponential expansion of special minority districting; the plurality goes so far as to suggest that recognizing crossover districts as possible minority-opportunity districts would inherently “entitl[e] minority groups to the maximum possible voting strength.” Ante, at 11. But this conclusion again reflects a confusion of the gatekeeping function of the Gingles conditionswith the ultimate test for relief under §2. See ante, at 9–10 (“African-Americans standing alone have no better or worse opportunity to elect a candidate than does any other group of voters with the same relative voting strength”).

As already explained, supra, at 5–6, the mere fact that all threshold Gingles conditions could be met and a district could be drawn with a minority population sufficiently large to elect the candidate of its choice does not require drawing such a district. This case simply is about the first Gingles condition,not about the number of minority-opportunity districts needed under §2, and accepting Bartlett’s position would in no way imply an obligation to maximize districts with minority voter potential. Under any interpretation of the first Gingles factor, the State must draw districts in a way that provides minority voters with a fair number of districts in which they have an opportunity to elect candidates of their choice; the only question here is which districts will count toward that total.

3

The plurality’s fear of maximizationfinds a parallel in the concern that treating crossover districts as minority-opportunity districts would “create serious tension” with the third Gingles prerequisite of majority-bloc voting. Ante, at 11. The plurality finds “[i]t … difficult to see how the majority-bloc-voting requirement could be met in a district where, by definition, white voters join in sufficient numbers with minority voters to elect the minority’s preferred candidate.” Ibid.

It is not difficult to see. If a minority population with 49% of the CVAP can elect the candidate of its choice with crossover by 2% of white voters, the minority “by definition” relies on white support to elect its preferred candidate. But this fact alone would raise no doubt, as a matter of definition or otherwise, that the majority-bloc-voting requirement could be met, since as much as 98% of the majority may have voted against the minority’s candidate of choice. As explained above, supra, at 8, the third Gingles condition may well impose an analytical floor to the minority population and a ceiling on the degree of crossover allowed in a crossover district; that is, the concept of majority-bloc voting requires that majority voters tend to stick together in a relatively high degree. The precise standard for determining majority-bloc voting is not at issue in this case, however; to refute the plurality’s 50% rule, one need only recognize that racial cohesion of 98% would be bloc voting by any standard.3

4

The plurality argues that qualifying crossover districts as minority-opportunity districts would be less administrable than demanding 50%, forcing courts to engage with the various factual and predictive questions that would come up in determining what percentage of majority voters would provide the voting minority with a chance at electoral success. Ante, at 12–13. But claims based on a State’s failure to draw majority-minority districts raise the same issues of judicial judgment; even when the 50% threshold is satisfied, a court will still have to engage in factually messy enquiries about the “potential” such a district may afford, the degree of minority cohesion and majority-bloc voting, and the existence of vote-dilution under a totality of the circumstances. See supra, at 5–6, 8. The plurality’s rule, therefore, conserves an uncertain amount of judicial resources, and only at the expense of ignoring a class of §2 claims that this Court has no authority to strike from the statute’s coverage.

5

The plurality again misunderstands the nature of §2 in suggesting that its rule does not conflict with what the Court said in Georgia v. Ashcroft, 539 U. S. 461, 480–482 (2003) : that crossover districts count as minority-opportunity districts for the purpose of assessing whether minorities have the opportunity “to elect their preferred candidates of choice” under §5 of the VRA, 42 U. S. C. A. §1973c(b) (Supp. 2008). While the plurality is, of course, correct that there are differences between the enquiries under §2 and §5, ante, at 20, those differences do not save today’s decision from inconsistency with the prior pronouncement. A districting plan violates §5 if it diminishes the ability of minority voters to “elect their preferred candidates of choice,” §1973c(b), as measured against the minority’s previous electoral opportunity, Ashcroft, supra, at 477. A districting plan violates §2 if it diminishes the ability of minority voters to “elect representatives of their choice,” 42 U. S. C. §1973(b) (2000 ed.), as measured under a totality of the circumstances against a baseline of rough proportionality. It makes no sense to say that a crossover district counts as a minority-opportunity district when comparing the past and the present under §5, but not when comparing the present and the possible under §2.

6

Finally, the plurality tries to support its insistence on a 50% threshold by invoking the policy of constitutional avoidance, which calls for construing a statute so as to avoid a possibly unconstitutional result. The plurality suggests that allowing a lower threshold would “require crossover districts throughout the Nation,” ante,at 17, thereby implicating the principle of Shaw v. Reno that districting with an excessive reliance on race is unconstitutional (“excessive” now being equated by the plurality with the frequency of creating opportunity districts). But the plurality has it precisely backwards. A State will inevitably draw some crossover districts as the natural byproduct of districting based on traditional factors. If these crossover districts count as minority-opportunity districts, the State will be much closer to meeting its §2 obligation without any reference to race, and fewer minority-opportunity districts will, therefore, need to be created purposefully. But if, as a matter of law, only majority-minority districts provide a minority seeking equality with the opportunity to elect its preferred candidates, the State will have much further to go to create a sufficient number of minority-opportunity districts, will be required to bridge this gap by creating exclusively majority-minority districts, and will inevitably produce a districting plan that reflects a greater focus on race. The plurality, however, seems to believe that any reference to race in districting poses a constitutional concern, even a State’s decision to reduce racial blocs in favor of crossover districts. A judicial position with these consequences is not constitutional avoidance.

IV

More serious than the plurality opinion’s inconsistency with prior cases construing §2 is the perversity of the results it portends. Consider the effect of the plurality’s rule on North Carolina’s districting scheme. Black voters make up approximately 20% of North Carolina’s VAP4 and are distributed throughout 120 State House districts, App. to Pet. for Cert. 58a. As noted before, black voters constitute more than 50% of the VAP in 9 of these districts and over 39% of the VAP in an additional 12. Supra, at 7–8. Under a functional approach to §2, black voters in North Carolina have an opportunity to elect (and regularly do elect) the representative of their choice in as many as 21 House districts, or 17.5% of North Carolina’s total districts. See App. 109–110. North Carolina’s districting plan is therefore close to providing black voters with proportionate electoral opportunity. According to the plurality, however, the remedy of a crossover district cannot provide opportunity to minority voters who lack it, and the requisite opportunity must therefore be lacking for minority voters already living in districts where they must rely on crossover. By the plurality’s reckoning, then, black voters have an opportunity to elect representatives of their choice in, at most, nine North Carolina House districts. See ibid. In the plurality’s view, North Carolina must have a long way to go before it satisfies the §2 requirement of equal electoral opportunity.5

A State like North Carolina faced with the plurality’s opinion, whether it wants to comply with §2 or simply to avoid litigation, will, therefore, have no reason to create crossover districts. Section 2 recognizes no need for such districts, from which it follows that they can neither be required nor be created to help the State meet its obligation of equal electoral opportunity under §2. And if a legislature were induced to draw a crossover district by the plurality’s encouragement to create them voluntarily, ante, at 20–21, it would open itself to attack by the plurality based on the pointed suggestion that a policy favoring crossover districts runs counter to Shaw. The plurality has thus boiled §2 down to one option: the best way to avoid suit under §2, and the only way to comply with §2, is by drawing district lines in a way that packs minority voters into majority-minority districts, probably eradicating crossover districts in the process.

Perhaps the plurality recognizes this aberrant implication, for it eventually attempts to disavow it. It asserts that “§2 allows States to choose their own method of complying with the Voting Rights Act, and we have said that may include drawing crossover districts. . . . [But] §2 does not mandate creating or preserving crossover districts.” Ante, at 19. See also, ante,at 20 (crossover districts “can be evidence … of equal political opportunity …”). But this is judicial fiat, not legal reasoning; the plurality does not even attempt to explain how a crossover district can be a minority-opportunity district when assessing the compliance of a districting plan with §2, but cannot be one when sought as a remedy to a §2 violation. The plurality cannot have it both ways. If voluntarily drawing a crossover district brings a State into compliance with §2, then requiring creation of a crossover district must be a way to remedy a violation of §2, and eliminating a crossover district must in some cases take a State out of compliance with the statute. And when the elimination of a crossover district does cause a violation of §2, I cannot fathom why a voter in that district should not be able to bring a claim to remedy it.

In short, to the extent the plurality’s holding is taken to control future results, the plurality has eliminated the protection of §2 for the districts that best vindicate the goals of the statute, and has done all it can to force the States to perpetuate racially concentrated districts, the quintessential manifestations of race consciousness in American politics.

I respectfully dissent.

556 U. S. ____ (2009)

SUPREME COURT OF THE UNITED STATES

GARY BARTLETT, EXECUTIVE DIRECTOR OF THE
NORTH CAROLINA STATE BOARD OF ELECTIONS,
et al., PETITIONERS v. DWIGHT
STRICKLAND et al.
on writ of certiorari to the supreme court of north carolina
[March 9, 2009]

Justice Ginsburg, dissenting.

I join Justice Souter’s powerfully persuasive dissenting opinion, and would make concrete what is implicit in his exposition. The plurality’s interpretation of §2 of the Voting Rights Act of 1965 is difficult to fathom and severely undermines the statute’s estimable aim. Today’s decision returns the ball to Congress’ court. The Legislature has just cause to clarify beyond debate the appropriate reading of §2.

Breyer, J., dissenting

SUPREME COURT OF THE UNITED STATES

GARY BARTLETT, EXECUTIVE DIRECTOR OF THE
NORTH CAROLINA STATE BOARD OF ELECTIONS,
et al., PETITIONERS v. DWIGHT
STRICKLAND et al.
on writ of certiorari to the supreme court of north carolina
[March 9, 2009]

Justice Breyer, dissenting.

I join Justice Souter’s opinion in full. I write separately in light of the plurality’s claim that a bright-line 50% rule (used as a Gingles gateway) serves administrative objectives. In the plurality’s view, that rule amounts to a relatively simple administrative device that will help separate at the outset those cases that are more likely meritorious from those that are not. Even were that objective as critically important as the plurality believes, however, it is not difficult to find other numerical gateway rules that would work better.

Assume that a basic purpose of a gateway number is to separate (1) districts where a minority group can “elect representatives of their choice,” from (2) districts where the minority, because of the need to obtain majority crossover votes, can only “elect representatives” that are consensus candidates. 42 U. S. C. §1973(b) (2000 ed.); League of United Latin American Citizens v. Perry, 548 U. S. 399, 445 (2006) (plurality opinion). At first blush, one might think that a 50% rule will work in this respect. After all, if a 50% minority population votes as a bloc, can it not always elect the candidate of its choice? And if a minority population constitutes less than 50% of a district, is not any candidate elected from that district always a consensus choice of minority and majority voters? The realities of voting behavior, however, make clear that the answer to both these questions is “no.” See, e.g., Brief for Nathaniel Persily et al. as Amici Curiae 5–6. (“Fifty percent is seen as a magic number by some because under conditions of complete racial polarization and equal rates of voting eligibility, registration, and turnout, the minority community will be able to elect its candidate of choice. In practice, such extreme conditions are never present. . . . [S]ome districts must be more than 50% minority, while others can be less than 50% minority, in order for the minority community to have an equal opportunity to elect its candidate of choice” (emphasis added)); see also ante, at 8 (Souter, J., dissenting).

No voting group is 100% cohesive. Except in districts with overwhelming minority populations, some crossover votes are often necessary. The question is how likely it is that the need for crossover votes will force a minority to reject its “preferred choice” in favor of a “consensus candidate.” A 50% number does not even try to answer that question. To the contrary, it includes, say 51% minority districts, where imperfect cohesion may, in context, prevent election of the “minority-preferred” candidate, while it excludes, say, 45% districts where a smaller but more cohesive minority can, with the help of a small and reliable majority crossover vote, elect its preferred candidate.

Why not use a numerical gateway rule that looks more directly at the relevant question: Is the minority bloc large enough, is it cohesive enough, is the necessary majority crossover vote small enough, so that the minority (tending to vote cohesively) can likely vote its preferred candidate (rather than a consensus candidate) into office? See ante, at 7 (Souter, J., dissenting) (“[E]mpirical studies confirm[] that . . . minority groups” constituting less than 50% of the voting population “regularly elect their preferred candidates with the help of modest crossover by members of the majority”); see also Pildes, Is Voting-Rights Law Now at War With Itself? Social Science and Voting Rights in the 2000s, 80 N. C. L. Rev. 1517, 1529–1535 (2002) (reviewing studies showing small but reliable crossover voting by whites in districts where minority voters have demonstrated the ability to elect their preferred candidates without constituting 50% of the population in that district). We can likely find a reasonably administrable mathematical formula more directly tied to the factors in question.

To take a possible example: Suppose we pick a numerical ratio that requires the minority voting age population to be twice as large as the percentage of majority crossover votes needed to elect the minority’s preferred candidate. We would calculate the latter (the percentage of majority crossover votes the minority voters need) to take account of both the percentage of minority voting age population in the district and the cohesiveness with which they vote. Thus, if minority voters account for 45% of the voters in a district and 89% of those voters tend to vote cohesively as a group, then the minority needs a crossover vote of about 20% of the majority voters to elect its preferred candidate. (Such a district with 100 voters would have 45 minority voters and 55 majority voters; 40 minority voters would vote for the minority group’s preferred candidate at election time; the minority voters would need 11 more votes to elect their preferred candidate; and 11 is about 20% of the majority’s 55.) The larger the minority population, the greater its cohesiveness, and thus the smaller the crossover vote needed to assure success, the greater the likelihood that the minority can elect its preferred candidate and the smaller the likelihood that the cohesive minority, in order to find the needed majority crossover vote, must support a consensus, rather than its preferred, candidate.

In reflecting the reality that minority voters can elect the candidate of their choice when they constitute less than 50% of a district by relying on a small majority crossover vote, this approach is in no way contradictory, or even in tension with, the third Gingles requirement. Since Gingles itself, we have acknowledged that the requirement of majority-bloc voting can be satisfied even when some small number of majority voters crossover to support a minority-preferred candidate. See Thornburg v. Gingles, 478 U. S. 30, 59 (1986) (finding majority-bloc voting where the majority group supported African-American candidates in the general election at a rate of between 26% and 49%, with an average support of one-third). Given the difficulty of obtaining totally accurate statistics about cohesion, or even voting age population, the district courts should administer the numerical ratio flexibly, opening (or closing) the Gingles gate (in light of the probable merits of a case) where only small variances are at issue (e.g., where the minority group is 39% instead of 40% of a district). But the same is true with a 50% number (e.g., where the minority group is 49% instead of 50% of a district). See, e.g., Brief for United States as Amicus Curiae 15.

I do not claim that the 2-to-1 ratio is a perfect rule; I claim only that it is better than the plurality’s 50% rule. After all, unlike 50%, a 2-to-1 ratio (of voting age minority population to necessary non-minority crossover votes) focuses directly upon the problem at hand, better reflects voting realities, and consequently far better separates at the gateway likely sheep from likely goats. See Gingles, supra, at 45 (The Section 2 inquiry depends on a “ ‘functional’ view of the political process” and “ ‘a searching practical evaluation of the past and present reality.’ ” (quoting S. Rep. No. 97–417, p. 30, and n. 120 (1982)); Gingles, supra, at 94–95 (O’Connor, J., concurring in judgment) (“[T]here is no indication that Congress intended to mandate a single, universally applicable standard for measuring undiluted minority voting strength, regardless of local conditions . . . ”). In most cases, the 50% rule and the 2-to-1 rule would have roughly similar effects. Most districts where the minority voting age population is greater than 50% will almost always satisfy the 2-to-1 rule; and most districts where the minority population is below 40% will almost never satisfy the 2-to-1 rule. But in districts with minority voting age populations that range from 40% to 50%, the divergent approaches of the two standards can make a critical difference—as well they should.

In a word, Justice Souter well explains why the majority’s test is ill suited to the statute’s objectives. I add that the test the majority adopts is ill suited to its own administrative ends. Better gateway tests, if needed, can be found.
With respect, I dissent.
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