1 (Slip Opinion) OCTOBER TERM, 2015

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

HARRIS ET AL

. v . ARIZONA INDEPENDENT
REDISTRICTING COMMISSION ET AL

.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF ARIZONA

No. 14–232. Argued December 8, 2015—Decided April 20, 2016

After the 2010 census, Arizona’s independent redistricting commission

(Commission), comprising two Repu blicans, two Democrats, and one Independent, redrew Arizona’s legi slative districts, with guidance from legal counsel, mapping specialists, a statistician, and a Voting Rights Act specialist. The initia l plan had a maximum population deviation from absolute equality of districts of 4.07%, but the Com

mission adopted a revised plan with an 8.8% deviation on a 3-to-2 vote, with the Republican member s dissenting. After the Depart

ment of Justice approved the revise d plan as consistent with the Vot

ing Rights Act, appellants filed suit , claiming that the plan’s popula

tion variations were inconsistent with the Fourteenth Amendment. A three-judge Federal District Co urt entered judgment for the Com

mission, concluding that the “devia tions were primarily a result of good-faith efforts to comply with the Voting Rights Act . . . even though partisanship played some role.”
Held : The District Court did not err in upholding Arizona’s redistricting

plan. Pp. 3–11.

(a) The Fourteenth Am endment’s Equal Protecti on Clause requires States to “make an honest and good faith effort to construct [legisla

tive] districts . . . as nearly of equal population as is practicable,” Reynolds v. Sims , 377 U. S. 533, 577, but mathematical perfection is not required. Deviations may be justified by “legitimate considera

tions,” id ., at 579, including “traditional districting principles such as compactness [and] contiguity,” Shaw v. Reno , 509 U. S. 630, 647, as
well as a state interest in maintain ing the integrity of political subdi

visions, Mahan v. Howell , 410 U. S. 315, 328, a competitive balance among political parties, Gaffney v. Cummings , 412 U. S. 735, 752,2 HARRIS v. ARIZONA INDEPENDENT
REDISTRICTING COMM’N
Syllabus

and, before Shelby County v. Holder , 570 U. S. ___, compliance with §5 of the Voting Rights Act. It was proper for the Commission to pro

ceed on the last basis here. In addition, “minor deviations from mathematical equality”— i.e., deviations “under 10%,” Brown v. Thomson , 462 U. S. 835, 842—do not, by themselves, “make out a prima facie case of invidious dis crimination under the Fourteenth Amendment [requiring] just ification by the State,” Gaffney

, supra , at

745. Because the deviation here is under 10%, appellants cannot rely upon the numbers to show a constitutional violation. Instead, they must show that it is more probable than not that the deviation re

flects the predominance of illegitimate reapportionment factors ra

ther than “legitimate considerations.” Pp. 3–5.

(b) Appellants have failed to meet that burden here, where the rec

ord supports the District Court’s conclusion that the deviations pre

dominantly reflected Commission e fforts to achieve compliance with the Voting Rights Act, not to secure political advantage for the Dem

ocratic Party. To meet the Voting Rights Act’s nonretrogression re

quirement, a new plan, when compar ed to the current plan (bench

mark plan), must not diminish the number of districts in which minority groups can “elect their preferred candidates of choice” (abil

ity-to-elect districts). A State can obtain legal assurance that it has satisfied this requirement if it su bmits its proposed plan to the Jus

tice Department and the Department does not object to the plan. The
record shows that the Commission redrew the initial map to ensure that the plan had 10 ability-to-elect districts, the same number as the benchmark plan. But after a statistician reported that the Justice Department still might not agree with the plan, the Commission changed additional boundaries, causing District 8, a Republican lean

ing district, to become more politically competitive. Because this rec

ord well supports the District Co urt’s finding that the Commission was trying to comply with the Voting Rights Act, appellants have not shown that it is more probable th an not that illegitimate considera

tions were the predominant motivation for the deviations. They have thus failed to show that the plan violates the Equal Protection Clause. Pp. 5–9.

(c) Appellants’ additional argume nts are unpersuasive. While Ari

zona’s Democratic-leaning districts may be somewhat underpopulat

ed and its Republican-leaning di stricts somewhat overpopulated, these variations may reflect only the tendency of Arizona’s 2010 mi

nority populations to vote disproportionately for Democrats and thus can be explained by the Commission’s efforts to maintain at least 10 ability-to-elect districts. Cox v. Larios , 542 U. S. 947, in which the
Court affirmed a District Court’s conclusion that a Georgia reappor

tionment plan violated the Equal Protection Clause where its devia

-3 Cite as: 578 U. S. ____ (2016)

Syllabus

tion, though less than 10%, resulted from the use of illegitimate fac

tors, is inapposite because appellants have not carried their burden of showing the use of illegitimate factors here. And because Shelby County was decided after Arizona’s plan was created, it has no bear

ing on the issue whether the State’ s attempt to comply with the Vot

ing Rights Act is a legitimate state interest. Pp. 9–11.

993 F. Supp. 2d 1042, affirmed.

B REYER , J., delivered the opinion for a unanimous Court._________________

_________________ 1 Cite as: 578 U. S. ____ (2016)

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, Wash

ington, 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. 14–232

WESLEY W. HARRIS, ET AL ., APPELLANTS v. ARIZONA INDEPENDENT REDISTRICTING COMMISSION, ET AL

.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF ARIZONA

[April 20, 2016]

J USTICE B REYER delivered the opinion of the Court.
Appellants, a group of Arizona voters, challenge a re

districting plan for the State’s legislature on the ground that the plan’s districts are insufficiently equal in popula

tion. See Reynolds v. Sims , 377 U. S. 533, 577 (1964). Because the maximum population deviation between the largest and the smallest dis trict is less than 10%, the appellants cannot simply rely upon the numbers to show that the plan violates the Constitution. See Brown v. Thomson , 462 U. S. 835, 842 (1983). Nor have appellants adequately supported their contentions with other evi

dence. We consequently affi rm a 3-judge Federal District Court decision upholding the plan.

I
In 2000, Arizona voters, using the initiative process, amended the Arizona Constitution to provide for an inde

pendent redistricting commission. See Arizona State Legislature v. Arizona Independent Redistricting Comm’n

, 576 U. S. ___, ___ (2015) (slip op., at 35) (upholding the
amendment as consistent with federal constitutional and2 HARRIS v. ARIZONA INDEPENDENT
REDISTRICTING COMM’N
Opinion of the Court

statutory law). Each decade, the Arizona Commission on Appellate Court Appointments creates three slates of individuals: one slate of 10 Republicans, one slate of 10 Democrats, and one slate of 5 individuals not affiliated with any political party. The majority and minority leader of the Arizona Legislature each select one Redistricting
Commission member from the first two lists. These four
selected individuals in turn choose one member from the third, nonpartisan list. See Ariz. Const., Art. IV, pt. 2, §§1(5)–(8). Thus, the membership of the Commission consists of two Republicans, two Democrats, and one independent. After each decennial census, the Commission redraws Arizona’s 30 legislative districts. The first step in theprocess is to create “districts of equal population in a gridlike pattern across the state.” §1(14). It then adjusts the grid to “the extent practicable” in order to take into ac

count the need for population equality; to maintain geo

graphic compactness and continuity; to show respect for “communities of interest”; to follow locality boundaries; and to use “visible geographic features” and “undivided . . . tracts.” §§1(14)(B)–(E). The Commission will “favo[r]” political “competitive[ness]” as long as its efforts to do so “create no significant detriment to the other goals.” Id.

, §1(14)(F). Finally, it must adjust boundaries “as neces

sary” to comply with the Fe deral Constitution and with the federal Voting Rights Act. §1(14)(A). After the 2010 census, the legislative leadership selected the Commission’s two Republican and two Democratic members, who in turn selected an independent member,
Colleen Mathis. Mathis was then elected chairwoman. The Commission hired two counsel, one of whom they thought of as leaning Democrat and one as leaning Repub

lican. It also hired consultants, including mapping spe

cialists, a statistician, and a Voting Rights Act specialist. With the help of its staff, it drew an initial plan, based3 Cite as: 578 U. S. ____ (2016)

Opinion of the Court

upon the gridlike map, with district boundaries that pro

duced a maximum population deviation (calculated as the difference between the most populated and least populated district) of 4.07%. After changing several boundaries, including those of Districts 8, 24, and 26, the Commission adopted a revised plan by a vote of 3 to 2, with the two Republican members voting against it. In late April 2012, the Department of Justice approved the plan as consistent with the Voting Rights Act. The next day, appellants filed this lawsuit, primarily claiming that the plan’s population variations were incon

sistent with the Fourteenth Amendment. A 3-judge Fed

eral District Court heard the case. See 28 U. S. C. §2284(a) (providing for the convention of such a courtwhenever an action is filed challenging the constitutionality of apportionment of legislative districts). After a 5-day bench trial, the court, by a vote of 2 to 1, entered judgment for the Commission. The majo rity found that “the popula

tion deviations were primarily a result of good-faith efforts to comply with the Voting Rights Act . . . even though partisanship played some role.” 993 F. Supp. 2d 1042, 1046 (Ariz. 2014). Appellants sought direct review in this Court. See 28 U. S. C. §1253. We noted probable jurisdic

tion on June 30, 2015, and we now affirm.

II
A
The Fourteenth Amendment’s Equal Protection Clause requires States to “make an honest and good faith effort to construct [legislative] districts . . . as nearly of equal popu

lation as is practicable.” Reynolds , 377 U. S., at 577. The Constitution, however, does not demand mathematical perfection. In determining what is “practicable,” we have recognized that the Constitution permits deviation when it is justified by “legitimate considerations incident to the effectuation of a rational state policy.” Id ., at 579. In4 HARRIS v. ARIZONA INDEPENDENT
REDISTRICTING COMM’N
Opinion of the Court

related contexts, we have made clear that in addition to the “traditional districting prin ciples such as compactness [and] contiguity,” Shaw v. Reno , 509 U. S. 630, 647 (1993), those legitimate considerations can include a state inter

est in maintaining the integrity of political subdivisions,
Mahan v. Howell , 410 U. S. 315, 328 (1973), or the compet

itive balance among political parties, Gaffney v. Cum

mings , 412 U. S. 735, 752 (1973). In cases decided before Shelby County v. Holder , 570 U. S. ___ (2013), Members of the Court expressed the view that compliance with §5 of the Voting Rights Act is also a legitimate state considera

tion that can justify some deviation from perfect equality of population. See League of United Latin American Citi

zens v. Perry , 548 U. S. 399, 518 (2006) (S CALIA , J., con

curring in judgment in part and dissenting in part, joined in relevant part by R OBERTS , C. J., T HOMAS & A LITO , JJ.);
id ., at 475, n. 12 (Stevens, J., concurring in part and dis

senting in part, joined in relevant part by B REYER , J.); id

., at 485 n. 2 (Souter, J., concurring in part and dissenting in part, joined by G INSBURG , J.); see also Vieth v. Jubelirer

, 541 U. S. 267, 284 (2004) (plurality opinion) (listing exam

ples of traditional redistricti ng criteria, including “compli

ance with requirements of the [Voting Rights Act]”). It was proper for the Commission to proceed on that basis here.
We have further made clear that “minor deviations from mathematical equality” do not, by themselves, “make out a prima facie case of invidious discrimination under the Fourteenth Amendment so as to require justification by
the State.” Gaffney

, supra , at 745. We have defined as “minor deviations” those in “an apportionment plan with a maximum population deviation under 10%.” Brown , 462
U. S., at 842. And we have refused to require States to justify deviations of 9.9%, White v. Regester , 412 U. S. 755, 764 (1973), and 8%, Gaffney , 412 U. S., at 751. See also Fund for Accurate and Informed Representation, Inc. v. Weprin , 506 U. S. 1017 (1992) (summarily affirming a5 Cite as: 578 U. S. ____ (2016)

Opinion of the Court

District Court’s finding that there was no prima facie case where the maximum population deviation was 9.43%).In sum, in a case like this one, those attacking a stateapproved plan must show that it is more probable than not that a deviation of less than 10% reflects the predomi

nance of illegitimate reapportionment factors rather than the “legitimate considerations” to which we have referred

in Reynolds and later cases. Given the inherent difficulty of measuring and comparing factors that may legitimately
account for small deviations from strict mathematical equality, we believe that attacks on deviations under 10% will succeed only rarely, in unusual cases. And we are not surprised that the appellants have failed to meet their
burden here.

B
Appellants’ basic claim is that deviations in their appor

tionment plan from absolute equality of population reflect the Commission’s political efforts to help the Democratic Party. We believe that appellants failed to prove this claim because, as the distri ct court concluded, the devia

tions predominantly reflected Commission efforts to achieve compliance with the federal Voting Rights Act, not to secure political advantage for one party. Appellants failed to show to the contrary. And the record bears out
this conclusion. Cf

. Anderson v. Bessemer City , 470 U. S. 564, 573 (1985) (explaining that a district court’s factual finding as to whether discri mination occurred will not be set aside by an appellate cou rt unless clearly erroneous). The Voting Rights Act, among other things, forbids the use of new reapportionment plans that “would lead to a retrogression in the position of racial minorities with respect to their effective exe rcise of the electoral fran

chise.” Reno v. Bossier Parish School Bd. , 520. U. S. 471, 478 (1997). A plan leads to impermissible retrogression when, compared to the plan currently in effect (typically6 HARRIS v. ARIZONA INDEPENDENT
REDISTRICTING COMM’N
Opinion of the Court

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 “ability

to-elect” districts). See 52 U. S. C. §10304(b). A State canobtain legal assurance that it has satisfied the nonretrogression requirement if it submits its proposed plan to the Federal Department of Justice, and the Department does not object to the plan within 60 days. See 28 C. F. R. §§51.9, 51.52(b) (2015). While Shelby County struck down the §4(b) coverage formula, that decision came after the maps in this case were drawn. The record in this case shows that the gridlike map that emerged after the first step of the redistricting process had a maximum population deviation from absolute equal

ity of districts of 4.07%. After consulting with their Voting Rights Act expert, their mapping consultant, and their statisticians, all five Commi ssioners agreed that they must try to obtain Justice De partment Voting Rights Act “preclearance” and that the former benchmark plan con

tained 10 ability-to-elect districts. They consequently set a goal of 10 such districts for the new plan. They then went through an iterative proc ess, involving further con

sultation, to adjust the plan’s initial boundaries in order to enhance minority voting strength. In October 2011 (by a vote of 4 to 1), they tentatively approved a draft plan with adjusted boundaries. They believed it met their goal of 10 ability-to-elect districts. And they published the plan for public comment. In the meantime, however, the Commission received a report from one of its statisticians suggesting that the Department of Justice might not agree that the new pro

posed plan contained 10 ability-to -elect districts. It was difficult to know for certain because the Justice Depart

ment did not tell States how many ability-to-elect districts it believed were present in a benchmark plan, and neither did it typically explain precisely and specifically how it7 Cite as: 578 U. S. ____ (2016)

Opinion of the Court

would calculate the number that exist in a newly submit

ted plan. See 76 Fed. Reg. 7470–7471 (2011). At the same time, the ability-to-elect analysis was complex, involving more than simply adding up census figures. The Depart

ment of Justice instead conducted a “functional analysis of the electoral behavior within the particular . . . election district,” id., at 7471

, and so might, for example, count as ability-to-elect districts “crossover” districts in which
white voters combine their votes with minorities, see
Bartlett v. Strickland , 556 U. S. 1, 13–14 (2009). Its calcu

lations might take into account group voting patterns, electoral participation, election history, and voter turnout. See 76 Fed. Reg., 7471. The upshot was not random decision-making but the process did create an inevitable degree of uncertainty. And that uncertainty could lead a redistricting commission, as it led Arizona’s, to make
serious efforts to make certain that the districts it believed were ability-to-elect districts did in fact meet the criteria that the Department might reasonably apply. Cf . Ala

bama Legislative Black Caucus v. Alabama , 575 U. S. ___, ___ (2015) (slip op., at 22) (“The law cannot insist that a state legislature, when redistricting, determine precisely what percent minority population §5 demands [because] the standards of §5 are complex . . . . [To do so would] lay a trap for an unwary legislature, condemning its redis

tricting plan as either . . . unconstitutional racial gerry

mandering [or] . . . retrogressive under §5”). As a result of the statistician’s report, the Commission became concerned about certain of its proposed bounda

ries. One of the Commission’s counsel advised that it would be “prudent to stay the course in terms of the ten districts that are in the draft map and look to . . . strengthen them if there is a way to strengthen them.” 993

F. Supp. 2d, at 1058 (internal quotation marks omitted). Subsequently, the Commission adopted several changes to
the boundaries of Districts 24 and 26. It reduced the8 HARRIS v. ARIZONA INDEPENDENT
REDISTRICTING COMM’N
Opinion of the Court

populations of those districts, thereby increasing the percentage of Hispanic voters in each. The Commission approved these changes unanimously. Changes in the boundaries of District 8, however, proved more controversial. District 8 leaned Republican. A Democrat-appointed Commissi oner asked the mapping specialist to look into modifications that might make District 8 politically more co mpetitive. The specialist returned with a draft that shifted the boundary line be

tween District 8 and District 11 so as to keep several communities with high minori ty populations together in District 8. The two Republican-appointed Commissioners objected that doing so would favor Democrats by “hy

perpacking” Republicans into other districts; they added that the Commission should either favor political competi

tiveness throughout the State or not at all. Id. , at 1059 (internal quotation marks omitted). The Democrat-appointed proponent of the change re

plied that District 8 had hist orically provided minority groups a good opportunity to elect their candidate of choice—an opportunity that the changes would preserve. The Voting Rights Act specialist then said that by slightly increasing District 8’s minori ty population, the Commis

sion might be able to claim an 11th ability-to-elect district; and that fact would “unquestionably enhance the submis

sion and enhance chances for preclearance.” Ibid. (inter

nal quotation marks omitted). The Commission’s counsel then added that having another possible ability-to-elect district could be helpful because District 26 was not as strong an ability-to-elect district as the others. See ibid

. Only then, after the counsel and consultants argued for District 8 changes for the sake of Voting Rights Act pre

clearance, did Chairwoman Mathis support those changes. On that basis, the Commission ultimately approved the changes to District 8 by a vote of 3 to 2 (with the two Republican-appointed commissioners dissenting). The9 Cite as: 578 U. S. ____ (2016)

Opinion of the Court

total population deviation am ong districts in this final map was 8.8%. While the Commission ultimately con

cluded that District 8 was not a true ability-to-elect dis

trict, the State’s submission to the Department of Justice cited the changes to District 8 in support of the argument for preclearance. On April 26, 2012, the Department of Justice precleared the submitted plan. On the basis of the facts that we have summarized, the District Court majority found that “the population devia

tions were primarily a result of good-faith efforts to com

ply with the Voting Rights Act . . . even though partisan

ship played some role.” 993 F. Supp. 2d, at 1046. This conclusion was well supported in the record. And as a result, appellants have not shown that it is more probable than not that illegitimate considerations were the predom

inant motivation behind the plan’s deviations from math

ematically equal district po pulations—deviations that were under 10%. Consequently, they have failed to show that the Commission’s plan violates the Equal Protection Clause as interpreted in Reynolds and subsequent cases.

C
The appellants make three additional arguments. First,they support their claim that the plan reflects unreasonable use of partisan considerations by pointing to the fact
that almost all the Democrati c-leaning districts are some

what underpopulated and almost all the Republicanleaning districts are somewhat overpopulated. That is likely true. See 993 F. Supp. 2d, at 1049 (providing a chart with percentage deviatio n figures by district). But that fact may well reflect the te ndency of minority popula

tions in Arizona in 2010 to vote disproportionately for Democrats. If so, the variations are explained by the Commission’s efforts to maintain at least 10 ability-to

elect districts. The Commission may have relied on data from its statisticians and Voting Rights Act expert to10 HARRIS v. ARIZONA INDEPENDENT
REDISTRICTING COMM’N
Opinion of the Court

create districts tailored to ac hieve preclearance in which minority voters were a larger percentage of the district population. That might have necessitated moving other voters out of those districts, thereby leaving them slightly underpopulated. The appellants point to nothing in the record to suggest the contrary. Second, the appellants point to Cox v. Larios , 542 U. S. 947 (2004), in which we summarily affirmed a district court’s judgment that Georgia’s reapportionment of repre

sentatives to state legislativ e districts violated the Equal Protection Clause, even though the total population devia

tion was less than 10%. In Cox, however, unlike the pre

sent case, the district court found that those attacking the plan had shown that it was more probable than not that the use of illegitimate factors significantly explained deviations from numerical equality among districts. The district court produced many examples showing that population deviation as well as the shape of many districts “did not result from any attempt to create districts that were compact or contiguous, or to keep counties whole, or to preserve the cores of prior districts.” Id ., at 949. No legitimate purposes could explain them. It is appellants’ inability to show that the present plan’s deviations andboundary shapes result from the predominance of similarly illegitimate factors that makes Cox inapposite here. Even assuming, without deciding, that partisanship is an illegitimate redistricting fa ctor, appellants have not car

ried their burden. Third, appellants point to Shelby County v. Holder , 570
U. S. ___ (2013), in which this Court held unconstitutional sections of the Voting Rights A ct that are relevant to this case. Appellants contend that, as a result of that holding, Arizona’s attempt to comply with the Act could not have been a legitimate state interest. The Court decided Shelby County , however, in 2013. Arizona created the plan at issue here in 2010. At the time, Arizona was subject to11 Cite as: 578 U. S. ____ (2016)

Opinion of the Court

the Voting Rights Act, and we have never suggested the
contrary.

* * * For these reasons the judgment of the District Court is
affirmed.
It is so ordered.