Harris v. Ariz. Indep. Redistricting Comm'n

• Decision Date: 20 April 2016
• Docket Number: 14–232.
• Citation: 578 U.S. 253,136 S.Ct. 1301,194 L.Ed.2d 497
• Parties: Wesley W. HARRIS, et al., appellants v. ARIZONA INDEPENDENT REDISTRICTING COMMISSION, et al.
• Court: U.S. Supreme Court

578 U.S. 253

136 S.Ct. 1301

194 L.Ed.2d 497

Wesley W. HARRIS, et al., appellants

v.ARIZONA INDEPENDENT REDISTRICTING COMMISSION, et al.

No. 14–232.

Supreme Court of the United States

Argued Dec. 8, 2015.

Decided April 20, 2016.

Mark F. Hearne, II, Washington, DC, for Appellants.

Mark Brnovich, Attorney General, Phoenix, AZ, for Appellee Arizona Secretary of State Michele Reagan.

Paul M. Smith, Washington, DC, for Appellee Arizona Independent Redistricting Commission.

Sarah E. Harrington for the United States, as amicus curiae, by special leave of the Court, supporting appellee Arizona Independent Redistricting Commission.

Mark F. (Thor) Hearne, II, Stephen S. Davis, Arent Fox LLP, Washington, DC, Stephen G. Larson, Robert C. O'Brien, Hugh Hewitt, Steven A. Haskins, Arent

Fox LLP, Los Angeles, CA, David J. Cantelme, Cantelme & Brown PLC, Phoenix, AZ, for Appellants.

Mark Brnovich, Attorney General of Arizona, John R. Lopez IV, Solicitor General, Phoenix, AZ, Dalton Lamar Oldham, Jr., Dalton L Oldham LLC, Columbia, SC, E. Mark Braden, Richard B. Raile, Baker & Hostetler LLP, Washington, DC, Jason Torchinsky, Holtzman Vogel Josefiak Torchinsky PLLC, Warrenton, VA, for Appellee Arizona Secretary of State.

Mary R. O'Grady, Joseph Roth, Osborn Maledon, P.A., Phoenix, AZ, Joseph A. Kanefield, Ballard Spahr LLP, Phoenix, AZ, Paul M. Smith, Jessica Ring Amunson, Emily L. Chapuis, Zachary C. Schauf, Alex Trepp, Jenner & Block LLP, Washington, DC, for Appellee Arizona Independent Redistricting Commission.

Justice BREYER delivered the opinion of the Court.

Appellants, a group of Arizona voters, challenge a redistricting plan for the State's legislature on the ground that the plan's districts are insufficiently equal in population. See Reynolds v. Sims, 377 U.S. 533, 577, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). Because the maximum population deviation between the largest and the smallest district 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, 103 S.Ct. 2690, 77 L.Ed.2d 214 (1983). Nor have appellants adequately supported their contentions with other evidence. We consequently affirm 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 independent redistricting commission. See Arizona State Legislature v. Arizona Independent Redistricting Comm'n, 576 U.S. ––––, ––––, 135 S.Ct. 2652, 2677, 7192 L.Ed.2d 704 (2015) (upholding the amendment as consistent with federal constitutional and 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 the process is to create "districts of equal population in a grid-like pattern across the state." § 1 (14). It then adjusts the grid to "the extent practicable" in order to take into account the need for population equality; to maintain geographic 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 necessary" to comply with the Federal 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 Republican. It also hired consultants, including mapping specialists, a statistician, and a Voting Rights Act specialist. With the help of its staff, it drew an initial plan, based upon the gridlike map, with district boundaries that produced 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 inconsistent with the Fourteenth Amendment. A 3–judge Federal District Court heard the case. See 28 U.S.C. § 2284(a) (providing for the convention of such a court whenever 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 majority found that "the population 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 jurisdiction 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 population as is practicable." Reynolds, 377 U.S., at 577, 84 S.Ct. 1362. 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, 84 S.Ct. 1362. In related contexts, we have made clear that in addition to the "traditional districting principles such as compactness [and] contiguity," Shaw v. Reno, 509 U.S. 630, 647, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993), those legitimate considerations can include a state interest in maintaining the integrity of political subdivisions, Mahan v. Howell, 410 U.S. 315, 328, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973), or the competitive balance among political parties, Gaffney v. Cummings, 412 U.S. 735, 752, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973). In cases decided before Shelby County v. Holder, 570 U.S. ––––, 133 S.Ct. 2612, 186 L.Ed.2d 651 (2013), Members of the Court expressed the view that compliance with § 5 of the Voting Rights Act is also a legitimate state consideration that can justify some deviation from perfect equality of population. See League of United Latin American Citizens v. Perry, 548 U.S. 399, 518, 126 S.Ct. 2594, 165 L.Ed.2d 609 (2006) (SCALIA, J., concurring in judgment in part and dissenting in part, joined in relevant part by ROBERTS, C.J., THOMAS & ALITO, JJ.); id., at 475, n. 12, 126 S.Ct. 2594 (Stevens, J., concurring in part and dissenting in part, joined in relevant part by BREYER, J.); id ., at 485 n. 2, 126 S.Ct. 2594 (Souter, J., concurring in part and dissenting in part, joined by GINSBURG, J.); see also Vieth v. Jubelirer, 541 U.S. 267, 284, 124 S.Ct. 1769, 158 L.Ed.2d 546 (2004) (plurality opinion) (listing examples of traditional redistricting criteria, including "compliance 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, 93 S.Ct. 2321. We have defined as "minor deviations" those in "an apportionment plan with a maximum population deviation under 10%." Brown, 462 U.S., at 842, 103 S.Ct. 2690. And we have refused to require States to justify deviations of 9. 9%, White v. Regester, 412 U.S. 755, 764, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), and 8%, Gaffney, 412 U.S., at 751, 93 S.Ct. 2321. See also Fund for Accurate and Informed Representation, Inc. v. Weprin, 506 U.S. 1017, 113 S.Ct. 650, 121 L.Ed.2d 577 (1992) (summarily affirming a 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 state-approved plan must show that it is more probable than not that a deviation of less than 10% reflects the predominance 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 apportionment 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 district court concluded, the deviations predominantly reflected Commission efforts to achieve compliance with the federal...