(Slip Opinion) OCTOBER TERM, 2016 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

BETHUNE-HILL ET AL. v. VIRGINIA STATE BOARD OF 

ELECTIONS ET AL. 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR 

THE EASTERN DISTRICT OF VIRGINA 

No. 15–680. Argued December 5, 2016—Decided March 1, 2017 

After the 2010 census, the Virginia State Legislature drew new lines 

for 12 state legislative districts, with a goal of ensuring that each district would have a black voting-age population (BVAP) of at least

55%. Certain voters filed suit, claiming that the new districts violated the Fourteenth Amendment’s Equal Protection Clause. State legislative officials (State) intervened to defend the plan. A three-judge

District Court rejected the challenges. As to 11 of the districts, the 

court concluded that the voters had not shown, as this Court’s precedent requires, “that race was the predominant factor motivating the

legislature’s decision to place a significant number of voters within or 

without a particular district,” Miller v. Johnson, 515 U. S. 900, 916. 

In so doing, the court held that race predominates only where there is 

an “ ‘actual conflict between traditional redistricting criteria and

race.’ ” 141 F. Supp. 3d 505, 524. It thus confined the predominance

analysis to the portions of the new lines that appeared to deviate

from traditional criteria. As to the remaining district, District 75, the 

court found that race did predominate, but that the lines were constitutional because the legislature’s use of race was narrowly tailored to

a compelling state interest. In particular, the court found the legislature had good reasons to believe that a 55% racial target was necessary in District 75 to avoid diminishing the ability of black voters to

elect their preferred candidates, which at the time would have violated §5 of the Voting Rights Act of 1965, see Alabama Legislative Black 

Caucus v. Alabama, 575 U. S. ___, ___. 

Held: 

1. The District Court employed an incorrect legal standard in determining that race did not predominate in 11 of the 12 districts. 
 

 

 

 

 

 

 

 

2 BETHUNE-HILL v. VIRGINIA STATE BD. OF ELECTIONS 

Syllabus 

Pp. 6–13.

(a) The Equal Protection Clause prohibits a State, without sufficient justification, from “separat[ing] its citizens into different voting 

districts on the basis of race.” Miller, 515 U. S., at 911. Courts must 

“exercise extraordinary caution in adjudicating claims” of racial gerrymandering, id., at 916, since a legislature is always “aware of race 

when it draws district lines, just as it is aware of . . . other demographic factors,” Shaw v. Reno, 509 U. S. 630, 646 (Shaw I). A plaintiff alleging racial gerrymandering thus bears the burden “to show,

either through circumstantial evidence of a district’s shape and demographics or more direct evidence going to legislative purpose, that 

race was the predominant factor motivating the legislature’s [districting] decision,” which requires proving “that the legislature subordinated traditional race-neutral districting principles . . . to racial considerations.” Miller, supra, at 916. Here, the District Court 

misapplied controlling law in two principal ways. Pp. 6–7. 

(b) First, the District Court misunderstood relevant precedents 

when it required the challengers to establish, as a prerequisite to

showing racial predominance, an actual conflict between the enacted

plan and traditional redistricting principles. This Court has made 

clear that parties may show predominance “either through circumstantial evidence of a district’s shape and demographics or more direct evidence going to legislative purpose,” Miller, supra, at 916, and 

that race may predominate even when a plan respects traditional

principles, Shaw v. Hunt, 517 U. S. 899, 907 (Shaw II).

The State’s theory in this case is irreconcilable with Miller and 

Shaw II. The State insists, e.g., that the harm from racial gerrymandering lies not in racial line-drawing per se but in grouping voters of 

the same race together when they otherwise lack shared interests.

But “the constitutional violation” in racial gerrymandering cases 

stems from the “racial purpose of state action, not its stark manifestation.” Miller, supra, at 913. The State also contends that race does 

not have a prohibited effect on a district’s lines if the legislature

could have drawn the same lines in accordance with traditional criteria. The proper inquiry, however, concerns the actual considerations

that provided the essential basis for the lines drawn, not post hoc justifications that the legislature could have used but did not. A legislature could construct a plethora of potential maps that look consistent

with traditional, race-neutral principles, but if race is the overriding 

reason for choosing one map over others, race still may predominate.

A conflict or inconsistency may be persuasive circumstantial evidence 

tending to show racial predomination, but no rule requires challengers to present this kind of evidence in every case. As a practical matter, this kind of evidence may be necessary in many or even most 
 

 

 

 

 

Cite as: 580 U. S. ____ (2017) 3 

Syllabus 

cases. But there may be cases where challengers can establish racial

predominance without evidence of an actual conflict. Pp. 7–11.

(c) The District Court also erred in considering the legislature’s

racial motive only to the extent that the challengers identified deviations from traditional redistricting criteria attributable to race and 

not to some other factor. Racial gerrymandering claims proceed “district-by-district,” Alabama, supra, at ___, and courts should not divorce any portion of a district’s lines—whatever their relationship to 

traditional principles—from the rest of the district. Courts may consider evidence pertaining to an area that is larger or smaller than the 

district at issue. But the ultimate object of the inquiry is the legislature’s predominant motive for the district’s design as a whole, and

any explanation for a particular portion of the lines must take account of the districtwide context. A holistic analysis is necessary to

give the proper weight to districtwide evidence, such as stark splits 

in the racial composition of populations moved into and out of a district, or the use of a racial target. Pp. 11–12. 

(d) The District Court is best positioned to determine on remand

the extent to which, under the proper standard, race directed the 

shape of these 11 districts, and if race did predominate, whether 

strict scrutiny is satisfied. Pp. 12–13. 

2. The District Court’s judgment regarding District 75 is consistent 

with the basic narrow tailoring analysis explained in Alabama. 

Where a challenger succeeds in establishing racial predominance, the 

burden shifts to the State to “demonstrate that its districting legislation is narrowly tailored to achieve a compelling interest.” Miller, 

supra, at 920. Here, it is assumed that the State’s interest in complying with the Voting Rights Act was a compelling interest. When a 

State justifies the predominant use of race in redistricting on the basis of the need to comply with the Voting Rights Act, “the narrow tailoring requirement insists only that the legislature have a ‘strong basis in evidence’ in support of the (race-based) choice that it has 

made.” Alabama, 575 U. S., at ___–___. The State must show not 

that its action was actually necessary to avoid a statutory violation,

but only that the legislature had “ ‘good reasons to believe’ ” its use of 

race was needed in order to satisfy the Voting Rights Act. Ibid. 

There was no error in the District Court’s conclusion that the legislature had sufficient grounds to determine that the race-based calculus 

it employed in District 75 was necessary to avoid violating §5. Under 

the facts found by that court, the legislature performed the kind of

functional analysis of District 75 necessary under §5, and the result

reflected the good-faith efforts of legislators to achieve an informed

bipartisan consensus. In contesting the sufficiency of that evidence

and the evidence justifying the 55% BVAP floor, the challengers ask 
 

 

 

4 BETHUNE-HILL v. VIRGINIA STATE BD. OF ELECTIONS 

Syllabus 

too much from state officials charged with the sensitive duty of reapportioning legislative districts. As to the claim that the BVAP floor is 

akin to the “mechanically numerical view” of §5 rejected in Alabama, 

supra, at ___, the record here supports the State’s conclusion that 

this was an instance where a 55% BVAP was necessary for black voters to have a functional working majority. Pp. 13–16. 

141 F. Supp. 3d 505, affirmed in part, vacated in part, and remanded. 

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, 

C. J., and GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. 

ALITO, J., filed an opinion concurring in part and concurring in the 

judgment. THOMAS, J., filed an opinion concurring in the judgment in

part and dissenting in part. 
 

 

_________________ 

_________________ 

Cite as: 580 U. S. ____ (2017) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 15–680 

GOLDEN BETHUNE-HILL, ET AL., APPELLANTS v.
 

VIRGINIA STATE BOARD OF ELECTIONS, ET AL. 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR 

THE EASTERN DISTRICT OF VIRGINIA 

[March 1, 2017] 

JUSTICE KENNEDY delivered the opinion of the Court. 

This case addresses whether the Virginia state legislature’s consideration of race in drawing new lines for 12 

state legislative districts violated the Equal Protection 

Clause of the Fourteenth Amendment. After the 2010 

census, some redistricting was required to ensure proper

numerical apportionment for the Virginia House of Delegates. It is undisputed that the boundary lines for the 12

districts at issue were drawn with a goal of ensuring that 

each district would have a black voting-age population 

(BVAP) of at least 55%.

Certain voters challenged the new districts as unconstitutional racial gerrymanders. The United States District 

Court for the Eastern District of Virginia, constituted as a

three-judge district court, rejected the challenges as to

each of the 12 districts. As to 11 of the districts, the District Court concluded that the voters had not shown, as 

this Court’s precedent requires, “that race was the predominant factor motivating the legislature’s decision to

place a significant number of voters within or without a

particular district.” Miller v. Johnson, 515 U. S. 900, 916 
 

2 BETHUNE-HILL v. VIRGINIA STATE BD. OF ELECTIONS 

Opinion of the Court 

(1995). The District Court held that race predominates 

only where there is an “‘actual conflict between traditional 

redistricting criteria and race,’” 141 F. Supp. 3d 505, 524 

(ED Va. 2015), so it confined the predominance analysis to 

the portions of the new lines that appeared to deviate from

traditional criteria, and found no violation. As to the 

remaining district, District 75, the District Court found 

that race did predominate. It concluded, however, that the 

lines were constitutional because the legislature’s use of 

race was narrowly tailored to a compelling state interest. 

In particular, the District Court determined that the

legislature had “good reasons to believe” that a 55% racial

target was necessary in District 75 to avoid diminishing

the ability of black voters to elect their preferred candidates, which at the time would have violated §5 of the 

Voting Rights Act of 1965. Alabama Legislative Black 

Caucus v. Alabama, 575 U. S. ___, ___ (2015) (slip op., at 

22) (internal quotation marks omitted and emphasis

deleted).

On appeal to this Court, the challengers contend that

the District Court employed an incorrect legal standard

for racial predominance and that the legislature lacked 

good reasons for its use of race in District 75. This Court 

now affirms as to District 75 and vacates and remands as 

to the remaining 11 districts. 

I 

After the 2010 census, the Virginia General Assembly 

set out to redraw the legislative districts for the State

Senate and House of Delegates in time for the 2011 elections. In February 2011, the House Committee on Privileges and Elections adopted a resolution establishing 

criteria to guide the redistricting process. Among those 

criteria were traditional redistricting factors such as

compactness, contiguity of territory, and respect for communities of interest. But above those traditional objec-
 

 

 

Cite as: 580 U. S. ____ (2017) 3 

Opinion of the Court 

tives, the committee gave priority to two other goals.

First, in accordance with the principle of one person, one 

vote, the committee resolved that “[t]he population of each

district shall be as nearly equal to the population of every 

other district as practicable,” with any deviations falling 

“within plus-or-minus one percent.” 141 F. Supp. 3d, at 

518. Second, the committee resolved that the new map 

must comply with the “protections against . . . unwarranted 

retrogression” contained in §5 of the Voting Rights Act. 

Ibid. At the time, §5 required covered jurisdictions, including Virginia, to preclear any change to a voting standard, practice, or procedure by showing federal authorities 

that the change would not have the purpose or effect of

“diminishing the ability of [members of a minority group] 

to elect their preferred candidates of choice.” §5, 120 Stat.

580–581, 52 U. S. C. §10304(b). After the redistricting 

process here was completed, this Court held that the

coverage formula in §4(b) of the Voting Rights Act no

longer may be used to require preclearance under §5. See 

Shelby County v. Holder, 570 U. S. ___, ___ (2013) (slip op., 

at 24).

The committee’s criteria presented potential problems 

for 12 House districts. Under §5 as Congress amended it 

in 2005, “[a] plan leads to impermissible retrogression 

when, compared to the plan currently in effect (typically 

called a ‘benchmark plan’), the new plan diminishes the 

number of districts in which minority groups can ‘elect

their preferred candidates of choice’ (often called ‘abilityto-elect’ districts).” Harris v. Arizona Independent Redistricting Comm’n, 578 U. S. ___, ___–___ (2016) (slip op., at 

5–6) (quoting 52 U. S. C. §10304(b)). The parties agree 

that the 12 districts at issue here, where minorities had 

constituted a majority of the voting-age population for 

many past elections, qualified as “ability-to-elect” districts.

Most of the districts were underpopulated, however, so 

any new plan required moving significant numbers of new 
 

4 BETHUNE-HILL v. VIRGINIA STATE BD. OF ELECTIONS 

Opinion of the Court 

voters into these districts in order to comply with the 

principle of one person, one vote. Under the benchmark 

plan, the districts had BVAPs ranging from 62.7% down to 

46.3%. Three districts had BVAPs below 55%. 

Seeking to maintain minority voters’ ability to elect 

their preferred candidates in these districts while complying with the one-person, one-vote criterion, legislators 

concluded that each of the 12 districts “needed to contain a 

BVAP of at least 55%.” 141 F. Supp. 3d, at 519. At trial, 

the parties disputed whether the 55% figure “was an

aspiration or a target or a rule.” Ibid. But they did not

dispute “the most important question—whether [the 55%] 

figure was used in drawing the Challenged Districts.” 

Ibid. The parties agreed, and the District Court found, 

“that the 55% BVAP figure was used in structuring the 

districts.” Ibid. In the enacted plan all 12 districts contained a BVAP greater than 55%.

Who first suggested the 55% BVAP criterion and how 

the legislators agreed upon it was less clear from the 

evidence. See id., at 521 (describing the “[t]estimony on

this question” as “a muddle”). In the end, the District 

Court found that the 55% criterion emerged from discussions among certain members of the House Black Caucus 

and the leader of the redistricting effort in the House, 

Delegate Chris Jones, “based largely on concerns pertaining to the re-election of Delegate Tyler in [District] 75.” 

Id., at 522. The 55% figure “was then applied across the

board to all twelve” districts. Ibid. 

In April 2011, the General Assembly passed Delegate

Jones’ plan with broad support from both parties and 

members of the Black Caucus. One of only two dissenting 

members of the Black Caucus was Delegate Tyler of District 75, who objected solely on the ground that the 55.4% 

BVAP in her district was too low. In June 2011, the U. S. 

Department of Justice precleared the plan.

Three years later, before this suit was filed, a separate 
 

Cite as: 580 U. S. ____ (2017) 5 

Opinion of the Court 

District Court struck down Virginia’s third federal congressional district (not at issue here), based in part on the 

legislature’s use of a 55% BVAP threshold. See Page v. 

Virginia State Bd. of Elections, 58 F. Supp. 3d 533, 553 

(ED Va. 2014), vacated and remanded sub nom. Cantor v. 

Personhuballah, 575 U. S. ___ (2015), judgt. entered 

sub nom. Page v. Virginia State Bd. of Elections, 2015 WL 

3604029 (June 5, 2015), appeal dism’d sub nom. Wittman 

v. Personhuballah, 578 U. S. ___ (2016). After that decision, 12 voters registered in the 12 districts here at issue 

filed this action challenging the district lines under the 

Equal Protection Clause. Because the claims “challeng[ed] 

the constitutionality of . . . the apportionment of [a] 

statewide legislative body,” the case was heard by a threejudge District Court. 28 U. S. C. §2284(a). The Virginia

House of Delegates and its Speaker, William Howell (together referred to hereinafter as the State), intervened

and assumed responsibility for defending the plan, both

before the District Court and now before this Court. 

After a 4-day bench trial, a divided District Court ruled

for the State. With respect to each challenged district, the 

court first assessed whether “racial considerations predominated over—or ‘subordinated’—traditional redistricting criteria.” 141 F. Supp. 3d, at 523. An essential premise of the majority opinion was that race does not 

predominate unless there is an “actual conflict between 

traditional redistricting criteria and race that leads to the 

subordination of the former.” Id., at 524. To implement 

that standard, moreover, the court limited its inquiry into 

racial motive to those portions of the district lines that 

appeared to deviate from traditional criteria. The court 

thus “examine[d] those aspects of the [district] that appear[ed] to constitute ‘deviations’ from neutral criteria” to 

ascertain whether the deviations were attributable to race 

or to other considerations, “such as protection of incumbents.” Id., at 533–534. Only if the court found a devia-
 

6 BETHUNE-HILL v. VIRGINIA STATE BD. OF ELECTIONS 

Opinion of the Court 

tion attributable to race did it proceed to “determine 

whether racial considerations qualitatively subordinated 

all other non-racial districting criteria.” Ibid. Under that 

analysis, the court found that race did not predominate in

11 of the 12 districts. 

When it turned to District 75, the District Court found 

that race did predominate. The court reasoned that 

“[a]chieving a 55% BVAP floor required ‘drastic maneuvering’ that is reflected on the face of the district.” Id., at 

557. Applying strict scrutiny, the court held that compliance with §5 was a compelling state interest and that the

legislature’s consideration of race in District 75 was narrowly tailored. As to narrow tailoring, the court explained 

that the State had “a strong basis in evidence” to believe

that its actions were “reasonably necessary” to avoid

retrogression. Id., at 548. In particular, the court found

that Delegate Jones had considered “precisely the kinds of

evidence that legislators are encouraged to use” in achieving compliance with §5, including turnout rates, the district’s large disenfranchised prison population, and voting

patterns in the contested 2005 primary and general elections. Id., at 558. 

Judge Keenan dissented as to all 12 districts. She 

concluded that the majority applied an incorrect understanding of racial predominance and that Delegate Jones’ 

analysis of District 75 was too “general and conclusory.” 

Id., at 578. This appeal followed, and probable jurisdiction 

was noted. 578 U. S. ___ (2016); see 28 U. S. C. §1253. 

II 

Against the factual and procedural background set out 

above, it is now appropriate to consider the controlling

legal principles in this case. The Equal Protection Clause

prohibits a State, without sufficient justification, from

“separat[ing] its citizens into different voting districts on 

the basis of race.” Miller, 515 U. S., at 911. The harms 
 

Cite as: 580 U. S. ____ (2017) 7 

Opinion of the Court 

that flow from racial sorting “include being personally 

subjected to a racial classification as well as being represented by a legislator who believes his primary obligation 

is to represent only the members of a particular racial

group.” Alabama, 575 U. S., at ___ (slip op., at 6) (alterations, citation, and internal quotation marks omitted). At 

the same time, courts must “exercise extraordinary caution in adjudicating claims that a State has drawn district 

lines on the basis of race.” Miller, 515 U. S., at 916. “Electoral districting is a most difficult subject for legislatures,” 

requiring a delicate balancing of competing considerations. 

Id., at 915. And “redistricting differs from other kinds of 

state decisionmaking in that the legislature always is 

aware of race when it draws district lines, just as it is

aware of . . . a variety of other demographic factors.” 

Shaw v. Reno, 509 U. S. 630, 646 (1993) (Shaw I ).

In light of these considerations, this Court has held that

a plaintiff alleging racial gerrymandering bears the burden “to show, either through circumstantial evidence of a

district’s shape and demographics or more direct evidence

going to legislative purpose, that race was the predominant factor motivating the legislature’s decision to place a

significant number of voters within or without a particular 

district.” Miller, 515 U. S. at 916. To satisfy this burden,

the plaintiff “must prove that the legislature subordinated 

traditional race-neutral districting principles . . . to racial

considerations.” Ibid. The challengers contend that, in

finding that race did not predominate in 11 of the 12 

districts, the District Court misapplied controlling law in 

two principal ways. This Court considers them in turn. 

A 

The challengers first argue that the District Court

misunderstood the relevant precedents when it required 

the challengers to establish, as a prerequisite to showing 

racial predominance, an actual conflict between the enacted 
 

8 BETHUNE-HILL v. VIRGINIA STATE BD. OF ELECTIONS 

Opinion of the Court 

plan and traditional redistricting principles. The Court 

agrees with the challengers on this point. 

A threshold requirement that the enacted plan must

conflict with traditional principles might have been reconcilable with this Court’s case law at an earlier time. In 

Shaw I, the Court recognized a claim of racial gerrymandering for the first time. See 509 U. S., at 652. Certain 

language in Shaw I can be read to support requiring a

challenger who alleges racial gerrymandering to show an 

actual conflict with traditional principles. The opinion

stated, for example, that strict scrutiny applies to “redistricting legislation that is so bizarre on its face that it is

unexplainable on grounds other than race.” Id., at 644 

(internal quotation marks omitted). The opinion also

stated that “reapportionment is one area in which appearances do matter.” Id., at 647. 

The Court’s opinion in Miller, however, clarified the 

racial predominance inquiry. In particular, it rejected the

argument that, “regardless of the legislature’s purposes, a

plaintiff must demonstrate that a district’s shape is so 

bizarre that it is unexplainable other than on the basis of 

race.” 515 U. S., at 910–911. The Court held to the contrary in language central to the instant case: “Shape is

relevant not because bizarreness is a necessary element of 

the constitutional wrong or a threshold requirement of 

proof, but because it may be persuasive circumstantial 

evidence that race for its own sake, and not other districting principles, was the legislature’s dominant and controlling rationale.” Id., at 913. Parties therefore “may rely on

evidence other than bizarreness to establish race-based 

districting,” and may show predominance “either through

circumstantial evidence of a district’s shape and demographics or more direct evidence going to legislative 

purpose.” Id., at 913, 916. 

The Court addressed racial gerrymandering and traditional redistricting factors again in Shaw v. Hunt, 517 
Cite as: 580 U. S. ____ (2017) 9 

Opinion of the Court 

U. S. 899 (1996) (Shaw II). The Court there rejected the

view of one of the dissents that “strict scrutiny does not 

apply where a State ‘respects’ or ‘complies with traditional 

districting principles.’” Id., at 906 (quoting id., at 931–932 

(Stevens, J., dissenting); alteration omitted). Race may

predominate even when a reapportionment plan respects 

traditional principles, the Court explained, if “[r]ace was 

the criterion that, in the State’s view, could not be compromised,” and race-neutral considerations “came into

play only after the race-based decision had been made.” 

Id., at 907. 

The State’s theory in this case is irreconcilable with 

Miller and Shaw II. The State insists, for example, that

the harm from racial gerrymandering lies not in racial 

line-drawing per se but in grouping voters of the same race 

together when they otherwise lack shared interests. But 

“the constitutional violation” in racial gerrymandering

cases stems from the “racial purpose of state action, not its 

stark manifestation.” Miller, supra, at 913. The Equal

Protection Clause does not prohibit misshapen districts. 

It prohibits unjustified racial classifications.

The State contends further that race does not have a 

prohibited effect on a district’s lines if the legislature could

have drawn the same lines in accordance with traditional 

criteria. That argument parallels the District Court’s

reasoning that a reapportionment plan is not an express 

racial classification unless a racial purpose is apparent

from the face of the plan based on the irregular nature of

the lines themselves. See 141 F. Supp. 3d, at 524–526. 

This is incorrect. The racial predominance inquiry concerns the actual considerations that provided the essential 

basis for the lines drawn, not post hoc justifications the 

legislature in theory could have used but in reality did not.

Traditional redistricting principles, moreover, are numerous and malleable. The District Court here identified 

no fewer than 11 race-neutral redistricting factors a legis-
 

 

10 BETHUNE-HILL v. VIRGINIA STATE BD. OF ELECTIONS 

Opinion of the Court 

lature could consider, some of which are “surprisingly

ethereal” and “admi[t] of degrees.” Id., at 535, 537. By

deploying those factors in various combinations and permutations, a State could construct a plethora of potential

maps that look consistent with traditional, race-neutral 

principles. But if race for its own sake is the overriding

reason for choosing one map over others, race still may

predominate.

For these reasons, a conflict or inconsistency between

the enacted plan and traditional redistricting criteria is 

not a threshold requirement or a mandatory precondition 

in order for a challenger to establish a claim of racial

gerrymandering. Of course, a conflict or inconsistency 

may be persuasive circumstantial evidence tending to 

show racial predomination, but there is no rule requiring 

challengers to present this kind of evidence in every case. 

As a practical matter, in many cases, perhaps most

cases, challengers will be unable to prove an unconstitutional racial gerrymander without evidence that the enacted plan conflicts with traditional redistricting criteria.

In general, legislatures that engage in impermissible racebased redistricting will find it necessary to depart from

traditional principles in order to do so. And, in the absence of a conflict with traditional principles, it may be

difficult for challengers to find other evidence sufficient to

show that race was the overriding factor causing neutral 

considerations to be cast aside. In fact, this Court to date 

has not affirmed a predominance finding, or remanded a

case for a determination of predominance, without evidence that some district lines deviated from traditional 

principles. See Alabama, 575 U. S., at ___ (slip op., at 17); 

Hunt v. Cromartie, 526 U. S. 541, 547 (1999); Bush v. 

Vera, 517 U. S. 952, 962, 966, 974 (1996) (plurality opinion); Shaw II, supra, at 905–906; Miller, supra, at 917; 

Shaw I, supra, at 635–636. Yet the law responds to proper 

evidence and valid inferences in ever-changing circum-
 

Cite as: 580 U. S. ____ (2017) 11 

Opinion of the Court 

stances, as it learns more about ways in which its commands are circumvented. So there may be cases where

challengers will be able to establish racial predominance

in the absence of an actual conflict by presenting direct 

evidence of the legislative purpose and intent or other 

compelling circumstantial evidence. 

B 

The challengers submit that the District Court erred

further when it considered the legislature’s racial motive

only to the extent that the challengers identified deviations from traditional redistricting criteria that were

attributable to race and not to some other factor. In the 

challengers’ view, this approach foreclosed a holistic analysis of each district and led the District Court to give 

insufficient weight to the 55% BVAP target and other

relevant evidence that race predominated. Again, this

Court agrees. 

As explained, showing a deviation from, or conflict with,

traditional redistricting principles is not a necessary

prerequisite to establishing racial predominance. Supra, 

at 10. But even where a challenger alleges a conflict, or 

succeeds in showing one, the court should not confine its

analysis to the conflicting portions of the lines. That is 

because the basic unit of analysis for racial gerrymandering claims in general, and for the racial predominance 

inquiry in particular, is the district. Racial gerrymandering claims proceed “district-by-district.” Alabama, 575 

U. S., at ___ (slip op., at 6). “We have consistently described a claim of racial gerrymandering as a claim that

race was improperly used in the drawing of the boundaries

of one or more specific electoral districts.” Ibid. And 

Miller’s basic predominance test scrutinizes the legislature’s motivation for placing “a significant number of 

voters within or without a particular district.” 515 U. S., 

at 916. Courts evaluating racial predominance therefore 
 

 

12 BETHUNE-HILL v. VIRGINIA STATE BD. OF ELECTIONS 

Opinion of the Court 

should not divorce any portion of the lines—whatever 

their relationship to traditional principles—from the rest

of the district. 

This is not to suggest that courts evaluating racial

gerrymandering claims may not consider evidence pertaining to an area that is larger or smaller than the district at 

issue. The Court has recognized that “[v]oters, of course, 

can present statewide evidence in order to prove racial

gerrymandering in a particular district.” Alabama, supra, 

at ___ (slip op., at 7) (emphasis deleted). Districts share 

borders, after all, and a legislature may pursue a common

redistricting policy toward multiple districts. Likewise, a 

legislature’s race-based decisionmaking may be evident in

a notable way in a particular part of a district. It follows 

that a court may consider evidence regarding certain

portions of a district’s lines, including portions that conflict with traditional redistricting principles. 

The ultimate object of the inquiry, however, is the legislature’s predominant motive for the design of the district 

as a whole. A court faced with a racial gerrymandering 

claim therefore must consider all of the lines of the district 

at issue; any explanation for a particular portion of the 

lines, moreover, must take account of the districtwide 

context. Concentrating on particular portions in isolation

may obscure the significance of relevant districtwide 

evidence, such as stark splits in the racial composition of 

populations moved into and out of disparate parts of the 

district, or the use of an express racial target. A holistic 

analysis is necessary to give that kind of evidence its

proper weight. 

C 

The challengers ask this Court not only to correct the

District Court’s racial predominance standard but also to

apply that standard and conclude that race in fact did 

predominate in the 11 districts where the District Court 
Cite as: 580 U. S. ____ (2017) 13 

Opinion of the Court 

held that it did not. For its part, the State asks the Court

to hold that, even if race did predominate in these districts, the State’s predominant use of race was narrowly 

tailored to the compelling interest in complying with §5. 

The Court declines these requests. “[O]urs is a court of 

final review and not first view.” Department of Transportation v. Association of American Railroads, 575 U. S. ___, 

___ (2015) (slip op., at 12) (internal quotation marks omitted). The District Court is best positioned to determine in 

the first instance the extent to which, under the proper

standard, race directed the shape of these 11 districts. 

And if race did predominate, it is proper for the District

Court to determine in the first instance whether strict 

scrutiny is satisfied. These matters are left for the District Court on remand. 

III 

The Court now turns to the arguments regarding District 75. Where a challenger succeeds in establishing 

racial predominance, the burden shifts to the State to 

“demonstrate that its districting legislation is narrowly 

tailored to achieve a compelling interest.” Miller, supra, 

at 920. The District Court here determined that the 

State’s predominant use of race in District 75 was narrowly 

tailored to achieve compliance with §5. The challengers

contest the finding of narrow tailoring, but they do not

dispute that compliance with §5 was a compelling interest 

at the relevant time. As in previous cases, therefore, the 

Court assumes, without deciding, that the State’s interest 

in complying with the Voting Rights Act was compelling. 

E.g., Alabama, supra, at ___–___ (slip op., at 19–23); Shaw 

II, 517 U. S., at 915. 

Turning to narrow tailoring, the Court explained the

contours of that requirement in Alabama. When a State 

justifies the predominant use of race in redistricting on

the basis of the need to comply with the Voting Rights Act, 
 

 

 

14 BETHUNE-HILL v. VIRGINIA STATE BD. OF ELECTIONS 

Opinion of the Court 

“the narrow tailoring requirement insists only that the 

legislature have a strong basis in evidence in support of 

the (race-based) choice that it has made.” 575 U. S., at ___ 

(slip op., at 22) (internal quotation marks omitted). That 

standard does not require the State to show that its action 

was “actually . . . necessary” to avoid a statutory violation,

so that, but for its use of race, the State would have lost in 

court. Ibid. (internal quotation marks omitted). Rather, 

the requisite strong basis in evidence exists when the

legislature has “good reasons to believe” it must use race 

in order to satisfy the Voting Rights Act, “even if a court

does not find that the actions were necessary for statutory

compliance.” Ibid. (internal quotation marks omitted).

The Court now finds no error in the District Court’s 

conclusion that the State had sufficient grounds to determine that the race-based calculus it employed in District

75 was necessary to avoid violating §5. As explained, §5 at 

the time barred Virginia from adopting any districting

change that would “have the effect of diminishing the

ability of [members of a minority group] to elect their 

preferred candidates of choice.” 52 U. S. C. §10304(b).

Determining what minority population percentage will 

satisfy that standard is a difficult task requiring, in the 

view of the Department of Justice, a “functional analysis 

of the electoral behavior within the particular . . . election

district.” Guidance Concerning Redistricting Under Section 5 of the Voting Rights Act, 76 Fed. Reg. 7471 (2011). 

Under the facts found by the District Court, the legislature performed that kind of functional analysis of District 

75 when deciding upon the 55% BVAP target. Redrawing 

this district presented a difficult task, and the result

reflected the good-faith efforts of Delegate Jones and his

colleagues to achieve an informed bipartisan consensus.

Delegate Jones met with Delegate Tyler “probably half a 

dozen times to configure her district” in order to avoid

retrogression. 141 F. Supp. 3d, at 558 (internal quotation 
 

 

Cite as: 580 U. S. ____ (2017) 15 

Opinion of the Court 

marks omitted). He discussed the district with incumbents from other majority-minority districts. He also 

considered turnout rates, the results of the recent contested 

primary and general elections in 2005, and the district’s large population of disenfranchised black prisoners. 

The challengers, moreover, do not dispute that District 75

was an ability-to-elect district, or that white and black 

voters in the area tend to vote as blocs. See id., at 557– 

559. In light of Delegate Jones’ careful assessment of local

conditions and structures, the State had a strong basis in 

evidence to believe a 55% BVAP floor was required to

avoid retrogression. 

The challengers’ responses ask too much from state 

officials charged with the sensitive duty of reapportioning

legislative districts. First, the challengers contest the

sufficiency of the evidence showing that Delegate Jones in

fact performed a functional analysis, in part because that 

analysis was not memorialized in writing. But the District Court’s factual findings are reviewed only for clear 

error. See Easley v. Cromartie, 532 U. S. 234, 242 (2001). 

The findings regarding how the legislature arrived at the

55% BVAP target are well supported, and “we do not . . .

require States engaged in redistricting to compile a comprehensive administrative record.” Vera, 517 U. S., at 966 

(internal quotation marks omitted).

The challengers argue further that the drafters of the 

plan had insufficient evidence to justify a 55% BVAP floor.

The 2005 elections were idiosyncratic, the challengers

contend; moreover, demographic information about the 

prison in the district is absent from the record, and Delegate Tyler’s perspective was influenced by a personal

interest in reelection. That may have been so, and for 

those reasons, it is possible that, if the State had drawn 

District 75 with a BVAP below 55% and had sought judicial preclearance, a court would have found no §5 violation. But that is not the question here. “The law cannot 
 

16 BETHUNE-HILL v. VIRGINIA STATE BD. OF ELECTIONS 

Opinion of the Court 

insist that a state legislature, when redistricting, determine precisely what percent minority population §5 demands.” Alabama, 575 U. S., at ___ (slip op., at 22). The 

question is whether the State had “good reasons” to believe a 55% BVAP floor was necessary to avoid liability

under §5. Ibid. (internal quotation marks omitted). The 

State did have good reasons under these circumstances. 

Holding otherwise would afford state legislatures too little

breathing room, leaving them “trapped between the competing hazards of liability” under the Voting Rights Act

and the Equal Protection Clause. Vera, supra, at 977 

(internal quotation marks omitted).

As a final point, the challengers liken the 55% BVAP

floor here to the “mechanically numerical view” of §5 this

Court rejected in Alabama. 575 U. S., at ___ (slip op., at 

21). But Alabama did not condemn the use of BVAP 

targets to comply with §5 in every instance. Rather, this 

Court corrected the “misperception” that §5 required a

State to “maintai[n] the same population percentages in 

majority-minority districts as in the prior plan.” Id., at 

___–___ (slip op., at 19–20). “[I]t would seem highly unlikely,” the Court explained, that reducing a district’s 

BVAP “from, say, 70% to 65% would have a significant

impact on the black voters’ ability to elect their preferred 

candidate.” Id., at ___ (slip op., at 21). Yet reducing the

BVAP below 55% well might have that effect in some 

cases. The record here supports the legislature’s conclusion that this was one instance where a 55% BVAP was 

necessary for black voters to have a functional working 

majority. 

IV 

The Court’s holding in this case is controlled by precedent. The Court reaffirms the basic racial predominance 

analysis explained in Miller and Shaw II, and the basic 

narrow tailoring analysis explained in Alabama. The 
Cite as: 580 U. S. ____ (2017) 17 

Opinion of the Court 

District Court’s judgment as to District 75 is consistent

with these principles. Applying these principles to the 

remaining 11 districts is entrusted to the District Court in

the first instance. 

The judgment of the District Court is affirmed in part

and vacated in part. The case is remanded for further 

proceedings consistent with this opinion. 

It is so ordered. 
 

_________________ 

_________________ 

Cite as: 580 U. S. ____ (2017) 1 

Opinion of ALITO, J. 

SUPREME COURT OF THE UNITED STATES 

No. 15–680 

GOLDEN BETHUNE-HILL, ET AL., APPELLANTS v.
 

VIRGINIA STATE BOARD OF ELECTIONS, ET AL. 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR 

THE EASTERN DISTRICT OF VIRGINIA 

[March 1, 2017] 

JUSTICE ALITO, concurring in part and concurring in the

judgment. 

I join the opinion of the Court insofar as it upholds the

constitutionality of District 75. Ante, at 13–16. The districting plan at issue here was adopted prior to our decision in Shelby County v. Holder, 570 U. S. ___ (2013), and 

therefore it is appropriate to apply the body of law in effect 

at that time. What is more, appellants have never contested the District Court’s holding that compliance with §5 

of the Voting Rights Act was a compelling government 

interest for covered jurisdictions before our decision in 

Shelby County. See 141 F. Supp. 3d 505, 545–547 (ED Va. 

2015).

I concur in the judgment of the Court insofar as it vacates and remands the judgment below with respect to all 

the remaining districts. Unlike the Court, however, I 

would hold that all these districts must satisfy strict

scrutiny. See post, at 1–2 (THOMAS, J., concurring in

judgment in part and dissenting in part); see also League 

of United Latin American Citizens v. Perry, 548 U. S. 399, 

517 (2006) (Scalia, J., concurring in judgment in part and 

dissenting in part) (“[W]hen a legislature intentionally

creates a majority-minority district, race is necessarily its 

predominant motivation and strict scrutiny is therefore 

triggered”). 
_________________ 

_________________ 

Cite as: 580 U. S. ____ (2017) 1 

Opinion of THOMAS, J. 

SUPREME COURT OF THE UNITED STATES 

No. 15–680 

GOLDEN BETHUNE-HILL, ET AL., APPELLANTS v.
 

VIRGINIA STATE BOARD OF ELECTIONS, ET AL. 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR 

THE EASTERN DISTRICT OF VIRGINIA 

[March 1, 2017] 

JUSTICE THOMAS, concurring in the judgment in part

and dissenting in part. 

Appellants contend that 12 of Virginia’s state legislative 

districts are unconstitutional racial gerrymanders. The 

three-judge District Court rejected their challenge, holding

that race was not the legislature’s predominant motive in

drawing 11 of the districts and that the remaining district

survives strict scrutiny. I would reverse the District Court 

as to all 12 districts. I therefore concur in the judgment in

part and dissent in part. 

I 

I concur in the Court’s judgment reversing the District 

Court’s decision to uphold 11 of the 12 districts at issue in 

this case—House Districts 63, 69, 70, 71, 74, 77, 80, 89, 90, 

92, and 95. I do not agree, however, with the Court’s decision to leave open the question whether race predominated

in those districts and, thus, whether they are subject to 

strict scrutiny. Ante, at 12–13. Appellees (hereinafter

State) concede that the legislature intentionally drew all 

12 districts as majority-black districts. See, e.g., Brief for 

Appellees 1 (“[T]he legislature sought to achieve a [black

voting-age population] of at least 55% in adjusting the 

lines of the 12 majority-minority districts”). That concession, in my view, mandates strict scrutiny as to each 
 

2 BETHUNE-HILL v. VIRGINIA STATE BD. OF ELECTIONS 

Opinion of THOMAS, J. 

district. See Bush v. Vera, 517 U. S. 952, 1000 (1996) 

(THOMAS, J., concurring in judgment) (A State’s “concession that it intentionally created majority-minority districts [i]s sufficient to show that race was a predominant, 

motivating factor in its redistricting”); League of United 

Latin American Citizens v. Perry, 548 U. S. 399, 517 (2006) 

(LULAC) (Scalia, J., concurring in judgment in part and 

dissenting in part) (“[W]hen a legislature intentionally

creates a majority-minority district, race is necessarily its 

predominant motivation and strict scrutiny is therefore 

triggered”). I would therefore hold that the District Court 

must apply strict scrutiny to Districts 63, 69, 70, 71, 74, 

77, 80, 89, 90, 92, and 95 on remand. 

II 

I disagree with the Court’s judgment with respect to the

remaining district, District 75. The majority affirms the

District Court’s holding that District 75 is subject to strict

scrutiny. With this I agree, because, as with the other 11 

districts, the State conceded that it intentionally drew

District 75 as a majority-black district.

I disagree, however, with the majority’s determination 

that District 75 satisfies strict scrutiny. This Court has 

held that a State may draw distinctions among its citizens 

based on race only when it “is pursuing a compelling state 

interest” and has chosen “narrowly tailored” means to 

accomplish that interest. Shaw v. Hunt, 517 U. S. 899, 

908 (1996) (internal quotation marks omitted). The State 

asserts that it used race in drawing District 75 to further 

a “compelling interest in complying with Section 5 of the 

[Voting Rights Act of 1965].” Brief for Appellees 50.1 And 

it argues that, based on its “good-faith functional analysis” 

—————— 

1 It is unclear from the record whether the State sought to justify its 

use of race on other grounds. I would leave it to the District Court to 

evaluate in the first instance any other asserted compelling interest, 

including whether such interest has been forfeited. 
 

 

Cite as: 580 U. S. ____ (2017) 3 

Opinion of THOMAS, J. 

of the district, it narrowly tailored its use of race to 

achieve that interest. Id., at 56. In my view, the State

has neither asserted a compelling state interest nor narrowly tailored its use of race. 

A 

As an initial matter, the majority errs by “assum[ing],

without deciding, that the State’s interest in complying

with the Voting Rights Act was compelling.” Ante, at 13. 

To be sure, this Court has previously assumed that a State 

has a compelling interest in complying with the Voting 

Rights Act. But it has done so only in cases in which it

has not upheld the redistricting plan at issue. See, e.g., 

Miller v. Johnson, 515 U. S. 900, 921 (1995) (leaving open 

the question “[w]hether or not in some cases compliance 

with the [Voting Rights] Act, standing alone, can provide a 

compelling interest independent of any interest in remedying past discrimination”).2 This Court has never, before 

today, assumed a compelling state interest while upholding a state redistricting plan. Indeed, I know of no other 

—————— 

2See also Shaw v. Hunt, 517 U. S. 899, 911 (1996) (“In Miller, we 

expressly left open the question whether under the proper circumstances

compliance with the Voting Rights Act, on its own, could be a compelling [state] interest . . . . Here once again we do not reach that 

question because we find that creating an additional majority-black

district was not required under a correct reading of §5”); id., at 915 

(“We assume, arguendo, for the purpose of resolving this suit, that

compliance with §2 could be a compelling interest” but hold that the 

remedy “is not narrowly tailored to the asserted end”); Bush v. Vera, 517 

U. S. 952, 977, 979 (1996) (plurality opinion) (“[W]e assume without 

deciding that compliance with [the Voting Rights Act], as interpreted

by our precedents, can be a compelling state interest” but hold that the 

districts at issue are not “narrowly tailored” to achieve that interest

(citation omitted)); Alabama Legislative Black Caucus v. Alabama, 575 

U. S. ___, ___ (2015) (slip op., at 23) (“[W]e do not here decide whether 

. . . continued compliance with §5 remains a compelling interest”

because “we conclude that the District Court and the legislature asked 

the wrong question with respect to narrow tailoring”). 
 

4 BETHUNE-HILL v. VIRGINIA STATE BD. OF ELECTIONS 

Opinion of THOMAS, J. 

case, in any context, in which the Court has assumed

away part of the State’s burden to justify its intentional 

use of race. This should not be the first. I would hold that 

complying with §5 of the Voting Rights Act is not a compelling interest.

“[C]ompliance with federal antidiscrimination laws 

cannot justify race-based districting where the challenged 

district was not reasonably necessary under a constitutional reading and application of those laws.” Id., at 921 

(emphasis added). More than a decade ago, I joined Justice Scalia’s opinion in LULAC, which noted that this 

Court had “upheld the constitutionality of §5 as a proper

exercise of Congress’s authority under §2 of the Fifteenth

Amendment to enforce that Amendment’s prohibition on

the denial or abridgment of the right to vote.” 548 U. S., 

at 518. I therefore agreed that, “[i]n the proper case, . . . a 

covered jurisdiction may have a compelling interest in 

complying with §5.” Id., at 519. 

I have since concluded that §5 is “unconstitutional.” 

Northwest Austin Municipal Util. Dist. No. One v. Holder, 

557 U. S. 193, 216 (2009) (THOMAS, J., concurring in

judgment in part and dissenting in part). “[T]he violence, 

intimidation, and subterfuge that led Congress to pass §5

and this Court to uphold it no longer remains,” id., at 229, 

so §5 “can no longer be justified as an appropriate mechanism for enforcement of the Fifteenth Amendment,” id., at 

216. Because, in my view, §5 is unconstitutional, I would

hold that a State does not have a compelling interest in

complying with it. 

B 

Even if compliance with §5 were a compelling interest,

the State failed to narrowly tailor its use of race to further

that interest. 
 

Cite as: 580 U. S. ____ (2017) 5 

Opinion of THOMAS, J. 

1 

This Court has explained that “[a]ny preference based

on racial or ethnic criteria must necessarily receive a most

searching examination.” Wygant v. Jackson Bd. of Ed., 

476 U. S. 267, 273 (1986) (plurality opinion) (internal 

quotation marks omitted); accord, Adarand Constructors, 

Inc. v. Peña, 515 U. S. 200, 223 (1995); Grutter v. Bollinger, 539 U. S. 306, 378 (2003) (Rehnquist, C. J., dissenting). This exacting scrutiny makes sense because 

“[d]iscrimination on the basis of race” is “odious in all 

aspects.” Rose v. Mitchell, 443 U. S. 545, 555 (1979). 

Accordingly, a State’s use of race must bear “‘the most 

exact connection’” to the compelling state interest. 

Wygant, supra, at 280 (opinion of Powell, J.). In the context of redistricting, the redistricting map must, “at a 

minimum,” actually “remedy the anticipated violation” or

“achieve compliance” with the Voting Rights Act. Shaw, 

517 U. S., at 916. 

I have serious doubts about the Court’s standard for 

narrow tailoring, as characterized today and in Alabama 

Legislative Black Caucus v. Alabama, 575 U. S. ___ (2015). 

Relying on Alabama, the majority explains that narrow 

tailoring in the redistricting context requires “only that

the legislature have a strong basis in evidence in support 

of the (race-based) choice that it has made.” Ante, at 14 

(internal quotation marks omitted). That standard “does 

not demand that a State’s actions actually be necessary to 

achieve a compelling state interest in order to be constitutionally valid.” Alabama, supra, at ___ (slip op., at 22)

(internal quotation marks omitted); see also ante, at 14. 

Instead, under that standard, a state legislature needs 

only “good reasons to believe” that the use of race is required, even if the use of race is not “actually . . . necessary.” Alabama, supra, at ___ (slip op., at 22) (internal

quotation marks omitted). 

That approach to narrow tailoring—deferring to a 
 

6 BETHUNE-HILL v. VIRGINIA STATE BD. OF ELECTIONS 

Opinion of THOMAS, J. 

State’s belief that it has good reasons to use race—is 

“strict” in name only. To the extent the Court applies 

Alabama to dilute the well-settled standard established by 

our precedents, I demur. 

2 

Applying the proper narrow-tailoring standard for state 

classifications based on race, I conclude that the State did 

not narrowly tailor its use of race to comply with §5. As 

the majority recognizes, §5 requires a state redistricting

plan to maintain the black population’s ability to elect the

candidate of its choice in the district at issue—in other 

words, the State must “avoid retrogression” in the new 

district. Ante, at 14. 

The majority observes that the redistricting plan’s

architect, Delegate Chris Jones, performed a “functional 

analysis” in deciding that District 75 required a 55% black 

voting-age population—as opposed to some other percentage—to avoid retrogression. Ibid. The Court notes that, 

in arriving at the 55% threshold, Delegate Jones considered turnout rates, the results of the primary and general

elections in 2005, and the district’s “large population of 

disenfranchised black prisoners.” Ante, at 15. He also met 

with the incumbent delegate for District 75 “probably half 

a dozen times” and “discussed the district with incumbents from other majority-black districts.” Ante, at 14–15 

(internal quotation marks omitted). Those efforts add up, 

in the majority’s view, to a “careful assessment of local 

conditions and structures.” Ante, at 15. 

I do not agree that those efforts satisfy narrow tailoring. 

Delegate Jones admitted that he was “not aware” of “any

retrogress[ion] analysis” performed by “h[im] or any persons that worked with him in the development of the 

[redistricting] plan.” App. 288–289. Instead, he merely

“look[ed] at” the “percentage of black population and the 

percentage of black voting age population,” “looked at 
 

Cite as: 580 U. S. ____ (2017) 7 

Opinion of THOMAS, J. 

what happened over the last 10 year period given the 

existing population and demographic shifts,” and “tried to 

restore back” the levels of black voting-age population

from the previous maps. Id., at 290. That approach was

misguided, because §5 “does not require maintaining the 

same population percentages in majority-minority districts as in the prior plan.” Alabama, supra, at ___ (slip 

op., at 20). And in any event, that back-of-the-envelope

calculation does not qualify as rigorous analysis. I do not 

think we would permit so imprecise an approach with 

regard to any other instance of racial discrimination. 

The other evidence cited by the majority is similarly

weak. The majority points to the “‘half a dozen’” meetings 

between Delegate Jones and the incumbent delegate for

District 75, ante, at 14, but it is not apparent from the 

record whether District 75’s incumbent is the current 

black population’s candidate of choice. Moreover, the 

incumbent delegate may well have wanted her district to

be electorally safer than the Voting Rights Act requires. It 

also is not obvious to me that Delegate Jones was seeking 

to avoid retrogression in District 75 when he met with 

incumbent delegates from other majority-black districts. 

Ibid. In my view, those efforts fall far short of establishing that a 55% black voting-age population bears a more 

“‘exact connection’” to the State’s interest than any alternative percentage. Wygant, supra, at 279 (opinion of 

Powell, J.). Accordingly, I would hold that the State failed 

to narrowly tailor its use of race to avoid retrogression in

District 75. 

* * * 

In reaching these conclusions, I recognize that this

Court is at least as responsible as the state legislature for

these racially gerrymandered districts. As explained

above, this Court has repeatedly failed to decide whether

compliance with the Voting Rights Act is a compelling 
 

8 BETHUNE-HILL v. VIRGINIA STATE BD. OF ELECTIONS 

Opinion of THOMAS, J. 

governmental interest. See supra, at 3, and n. 2. Indeed, 

this Court has refused even to decide whether §5 is constitutional, despite having twice taken cases to decide that

question. Compare Juris. Statement in Northwest Austin, 

O. T. 2008, No. 08–322, p. i (presenting the question 

“[w]hether . . . the §5 preclearance requirement can be 

applied as a valid exercise of Congress’s remedial powers

under the Reconstruction Amendments”), and Shelby 

County v. Holder, 568 U. S. 1006 (2012) (granting certiorari on the question “[w]hether Congress’ decision in 2006 to

reauthorize Section 5 of the Voting Rights Act under the 

pre-existing coverage formula of Section 4(b) . . . violated

the Tenth Amendment and Article IV of the United States 

Constitution”), with Northwest Austin, 557 U. S., at 197 

(holding that the district at issue was eligible to seek 

bailout under the Voting Rights Act and therefore “not 

reach[ing] the constitutionality of §5”), and Shelby County 

v. Holder, 570 U. S. ___, ___ (2013) (slip op., at 24) (holding only that the coverage formula under §4(b) was unconstitutional and “issu[ing] no holding on §5 itself ”). As a 

result, the Court has left the State without clear guidance 

about its redistricting obligations under §5. 

This Court has put the State in a similar bind with

respect to narrow tailoring. To comply with §5, a State

necessarily must make a deliberate and precise effort to 

sort its citizens on the basis of their race. But that result 

is fundamentally at odds with our “color-blind” Constitution, which “neither knows nor tolerates classes among

citizens.” Plessy v. Ferguson, 163 U. S. 537, 559 (1896) 

(Harlan, J., dissenting). That contradiction illustrates the 

perversity of the Court’s jurisprudence in this area as well 

as the uncomfortable position in which the State might 

find itself. 

Despite my sympathy for the State, I cannot ignore the 

Constitution’s clear prohibition on state-sponsored race 

discrimination. “The Constitution abhors classifications 
 

Cite as: 580 U. S. ____ (2017) 9 

Opinion of THOMAS, J. 

based on race, not only because those classifications can 

harm favored races or are based on illegitimate motives,

but also because every time the government places citizens on racial registers . . . , it demeans us all.” Grutter, 

539 U. S., at 353 (THOMAS, J., concurring in part and 

dissenting in part). This prohibition was “[p]urchased at

the price of immeasurable human suffering,” and it “reflects our Nation’s understanding that such classifications 

ultimately have a destructive impact on the individual and 

our society.” Adarand Constructors, 515 U. S., at 240 

(THOMAS, J., concurring in part and concurring in judgment). I respectfully dissent from the Court’s judgment as

to District 75.