Gill v. Whitford , 138 S. Ct. 1916 ( 2018 )

(Slip Opinion) OCTOBER TERM, 2017 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
GILL ET AL. v. WHITFORD ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF WISCONSIN
No. 16–1161. Argued October 3, 2017—Decided June 18, 2018
Members of the Wisconsin Legislature are elected from single-member
legislative districts. Under the Wisconsin Constitution, the legisla-
ture must redraw the boundaries of those districts following each
census. After the 2010 census, the legislature passed a new district-
ing plan known as Act 43. Twelve Democratic voters, the plaintiffs in
this case, alleged that Act 43 harms the Democratic Party’s ability to
convert Democratic votes into Democratic seats in the legislature.
They asserted that Act 43 does this by “cracking” certain Democratic
voters among different districts in which those voters fail to achieve
electoral majorities and “packing” other Democratic voters in a few
districts in which Democratic candidates win by large margins. The
plaintiffs argued that the degree to which packing and cracking has
favored one political party over another can be measured by an “effi-
ciency gap” that compares each party’s respective “wasted” votes—
i.e., votes cast for a losing candidate or for a winning candidate in ex-
cess of what that candidate needs to win—across all legislative dis-
tricts. The plaintiffs claimed that the statewide enforcement of Act
43 generated an excess of wasted Democratic votes, thereby violating
the plaintiffs’ First Amendment right of association and their Four-
teenth Amendment right to equal protection. The defendants, sever-
al members of the state election commission, moved to dismiss the
plaintiffs’ claims. They argued that the plaintiffs lacked standing to
challenge the constitutionality of Act 43 as a whole because, as indi-
vidual voters, their legally protected interests extend only to the
makeup of the legislative district in which they vote. The three-judge
District Court denied the defendants’ motion and, following a trial,
concluded that Act 43 was an unconstitutional partisan gerrymander.
Regarding standing, the court held that the plaintiffs had suffered a
2 GILL v. WHITFORD
Syllabus
particularized injury to their equal protection rights.
Held: The plaintiffs have failed to demonstrate Article III standing.
Pp. 8–22.
(a) Over the past five decades this Court has repeatedly been asked
to decide what judicially enforceable limits, if any, the Constitution
sets on partisan gerrymandering. Previous attempts at an answer
have left few clear landmarks for addressing the question and have
generated conflicting views both of how to conceive of the injury aris-
ing from partisan gerrymandering and of the appropriate role for the
Federal Judiciary in remedying that injury. See Gaffney v. Cum-
mings, 412 U.S. 735, Davis v. Bandemer, 478 U.S. 109, Vieth v. Ju-
belirer, 541 U.S. 267, and League of United Latin American Citizens
v. Perry, 548 U.S. 399. Pp. 8–12.
(b) A plaintiff may not invoke federal-court jurisdiction unless he
can show “a personal stake in the outcome of the controversy,” Baker
v. Carr, 369 U.S. 186, 204. That requirement ensures that federal
courts “exercise power that is judicial in nature,” Lance v. Coffman,
549 U.S. 437, 439, 441. To meet that requirement, a plaintiff must
show an injury in fact—his pleading and proof that he has suffered
the “invasion of a legally protected interest” that is “concrete and
particularized,” i.e., which “affect[s] the plaintiff in a personal and
individual way.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560,
and n. 1.
The right to vote is “individual and personal in nature,” Reynolds v.
Sims, 377 U.S. 533, 561, and “voters who allege facts showing disad-
vantage to themselves as individuals have standing to sue” to remedy
that disadvantage, Baker, 369 U.S., at 206. The plaintiffs here al-
leged that they suffered such injury from partisan gerrymandering,
which works through the “cracking” and “packing” of voters. To the
extent that the plaintiffs’ alleged harm is the dilution of their votes,
that injury is district specific. An individual voter in Wisconsin is
placed in a single district. He votes for a single representative. The
boundaries of the district, and the composition of its voters, deter-
mine whether and to what extent a particular voter is packed or
cracked. A plaintiff who complains of gerrymandering, but who does
not live in a gerrymandered district, “assert[s] only a generalized
grievance against governmental conduct of which he or she does not
approve.” United States v. Hays, 515 U.S. 737, 745.
The plaintiffs argue that their claim, like the claims presented in
Baker and Reynolds, is statewide in nature. But the holdings in
those cases were expressly premised on the understanding that the
injuries giving rise to those claims were “individual and personal in
nature,” Reynolds, 377 U.S., at 561, because the claims were brought
by voters who alleged “facts showing disadvantage to themselves as
Cite as: 585 U. S. ____ (2018) 3
Syllabus
individuals,” Baker, 369 U.S., at 206. The plaintiffs’ mistaken in-
sistence that the claims in Baker and Reynolds were “statewide in
nature” rests on a failure to distinguish injury from remedy. In those
malapportionment cases, the only way to vindicate an individual
plaintiff’s right to an equally weighted vote was through a wholesale
“restructuring of the geographical distribution of seats in a state leg-
islature.” Reynolds, 377 U.S., at 561. Here, the plaintiffs’ claims
turn on allegations that their votes have been diluted. Because that
harm arises from the particular composition of the voter’s own dis-
trict, remedying the harm does not necessarily require restructuring
all of the State’s legislative districts. It requires revising only such
districts as are necessary to reshape the voter’s district. This fits the
rule that a “remedy must of course be limited to the inadequacy that
produced the injury in fact that the plaintiff has established.” Lewis
v. Casey, 518 U.S. 343, 357.
The plaintiffs argue that their legal injury also extends to the
statewide harm to their interest “in their collective representation in
the legislature,” and in influencing the legislature’s overall “composi-
tion and policymaking.” Brief for Appellees 31. To date, however,
the Court has not found that this presents an individual and personal
injury of the kind required for Article III standing. A citizen’s inter-
est in the overall composition of the legislature is embodied in his
right to vote for his representative. The harm asserted by the plain-
tiffs in this case is best understood as arising from a burden on their
own votes. Pp. 12–17.
(c) Four of the plaintiffs in this case pleaded such a particularized
burden. But as their case progressed to trial, they failed to pursue
their allegations of individual harm. They instead rested their case
on their theory of statewide injury to Wisconsin Democrats, in sup-
port of which they offered three kinds of evidence. First, they pre-
sented testimony pointing to the lead plaintiff’s hope of achieving a
Democratic majority in the legislature. Under the Court’s cases to
date, that is a collective political interest, not an individual legal in-
terest. Second, they produced evidence regarding the mapmakers’
deliberations as they drew district lines. The District Court relied on
this evidence in concluding that those mapmakers sought to under-
stand the partisan effect of the maps they were drawing. But the
plaintiffs’ establishment of injury in fact turns on effect, not intent,
and requires a showing of a burden on the plaintiffs’ votes that is “ac-
tual or imminent, not ‘conjectural’ or ‘hypothetical.’ ” Defenders of
Wildlife, 504 U.S., at 560. Third, the plaintiffs presented partisan-
asymmetry studies showing that Act 43 had skewed Wisconsin’s
statewide map in favor of Republicans. Those studies do not address
the effect that a gerrymander has on the votes of particular citizens.
4 GILL v. WHITFORD
Syllabus
They measure instead the effect that a gerrymander has on the for-
tunes of political parties. That shortcoming confirms the fundamen-
tal problem with the plaintiffs’ case as presented on this record. It is
a case about group political interests, not individual legal rights.
Pp. 17–21.
(d) Where a plaintiff has failed to demonstrate standing, this Court
usually directs dismissal. See, e.g., DaimlerChrysler Corp. v. Cuno,
547 U.S. 332, 354. Here, however, where the case concerns an un-
settled kind of claim that the Court has not agreed upon, the con-
tours and justiciability of which are unresolved, the case is remanded
to the District Court to give the plaintiffs an opportunity to prove
concrete and particularized injuries using evidence that would tend
to demonstrate a burden on their individual votes. Cf. Alabama Leg-
islative Black Caucus v. Alabama, 575 U. S. ___, ___. Pp. 21–22.
218 F. Supp. 3d 837, vacated and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which KENNEDY,
GINSBURG, BREYER, ALITO, SOTOMAYOR, and KAGAN, JJ., joined, and in
which THOMAS and GORSUCH, JJ., joined except as to Part III. KAGAN,
J., filed a concurring opinion, in which GINSBURG, BREYER, and SO-
TOMAYOR, JJ., joined. THOMAS, J., filed an opinion concurring in part
and concurring in the judgment, in which GORSUCH, J., joined.
Cite as: 585 U. S. ____ (2018) 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, 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. 16–1161
_________________
BEVERLY R. GILL, ET AL., APPELLANTS v.
WILLIAM WHITFORD, ET AL.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF WISCONSIN
[June 18, 2018]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
The State of Wisconsin, like most other States, entrusts
to its legislature the periodic task of redrawing the bound­
aries of the State’s legislative districts. A group of Wis­
consin Democratic voters filed a complaint in the District
Court, alleging that the legislature carried out this task
with an eye to diminishing the ability of Wisconsin Demo­
crats to convert Democratic votes into Democratic seats in
the legislature. The plaintiffs asserted that, in so doing,
the legislature had infringed their rights under the First
and Fourteenth Amendments.
But a plaintiff seeking relief in federal court must first
demonstrate that he has standing to do so, including that
he has “a personal stake in the outcome,” Baker v. Carr,
369 U.S. 186, 204 (1962), distinct from a “generally avail­
able grievance about government,” Lance v. Coffman, 549
U.S. 437, 439 (2007) (per curiam). That threshold re­
quirement “ensures that we act as judges, and do not
engage in policymaking properly left to elected representa­
tives.” Hollingsworth v. Perry, 570 U.S. 693, 700 (2013).
2 GILL v. WHITFORD
Opinion of the Court
Certain of the plaintiffs before us alleged that they had
such a personal stake in this case, but never followed up
with the requisite proof. The District Court and this
Court therefore lack the power to resolve their claims. We
vacate the judgment and remand the case for further
proceedings, in the course of which those plaintiffs may
attempt to demonstrate standing in accord with the analy­
sis in this opinion.
I
Wisconsin’s Legislature consists of a State Assembly
and a State Senate. Wis. Const., Art. IV, §1. The 99
members of the Assembly are chosen from single districts
that must “consist of contiguous territory and be in as
compact form as practicable.” §4. State senators are
likewise chosen from single-member districts, which are
laid on top of the State Assembly districts so that three
Assembly districts form one Senate district. See §5; Wis.
Stat. §4.001 (2011).
The Wisconsin Constitution gives the legislature the
responsibility to “apportion and district anew the mem­
bers of the senate and assembly” at the first session fol­
lowing each census. Art. IV, §3. In recent decades, how­
ever, that responsibility has just as often been taken up by
federal courts. Following the census in 1980, 1990, and
2000, federal courts drew the State’s legislative districts
when the Legislature and the Governor—split on party
lines—were unable to agree on new districting plans. The
Legislature has broken the logjam just twice in the last 40
years. In 1983, a Democratic Legislature passed, and a
Democratic Governor signed, a new districting plan that
remained in effect until the 1990 census. See 1983 Wis.
Laws ch. 4. In 2011, a Republican Legislature passed, and
a Republican Governor signed, the districting plan at issue
here, known as Act 43. See Wis. Stat. §§ 4.009, 4.01–4.99;
2011 Wis. Laws ch. 4. Following the passage of Act 43,
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Opinion of the Court
Republicans won majorities in the State Assembly in the
2012 and 2014 elections. In 2012, Republicans won 60
Assembly seats with 48.6% of the two-party statewide vote
for Assembly candidates. In 2014, Republicans won 63
Assembly seats with 52% of the statewide vote. 218
F. Supp. 3d 837, 853 (WD Wis. 2016).
In July 2015, twelve Wisconsin voters filed a complaint
in the Western District of Wisconsin challenging Act 43.
The plaintiffs identified themselves as “supporters of the
public policies espoused by the Democratic Party and of
Democratic Party candidates.” 1 Ohio App. 32, Complaint ¶15.
They alleged that Act 43 is a partisan gerrymander that
“unfairly favor[s] Republican voters and candidates,” and
that it does so by “cracking” and “packing” Democratic
voters around Wisconsin. Id., at 28–30, ¶¶5–7. As they
explained:
“Cracking means dividing a party’s supporters among
multiple districts so that they fall short of a majority
in each one. Packing means concentrating one party’s
backers in a few districts that they win by overwhelm­
ing margins.” Id., at 29, ¶5.
Four of the plaintiffs—Mary Lynne Donohue, Wendy Sue
Johnson, Janet Mitchell, and Jerome Wallace—alleged
that they lived in State Assembly districts where Demo­
crats have been cracked or packed. Id., at 34–36, ¶¶20,
23, 24, 26; see id., at 50–53, ¶¶60–70 (describing packing
and cracking in Assembly Districts 22, 26, 66, and 91). All
of the plaintiffs also alleged that, regardless of “whether
they themselves reside in a district that has been packed
or cracked,” they have been “harmed by the manipulation
of district boundaries” because Democrats statewide “do
not have the same opportunity provided to Republicans to
elect representatives of their choice to the Assembly.” Id.,
at 33, ¶16.
The plaintiffs argued that, on a statewide level, the
4 GILL v. WHITFORD
Opinion of the Court
degree to which packing and cracking has favored one
party over another can be measured by a single calcula­
tion: an “efficiency gap” that compares each party’s respec­
tive “wasted” votes across all legislative districts. “Wasted”
votes are those cast for a losing candidate or for a win-
ning candidate in excess of what that candidate needs
to win. Id., at 28–29, ¶5. The plaintiffs alleged that Act
43 resulted in an unusually large efficiency gap that fa­
vored Republicans. Id., at 30, ¶7. They also submitted a
“Demonstration Plan” that, they asserted, met all of the
legal criteria for apportionment, but was at the same time
“almost perfectly balanced in its partisan consequences.”
Id., at 31, ¶10. They argued that because Act 43 gener-
ated a large and unnecessary efficiency gap in favor of Re-
publicans, it violated the First Amendment right of associ­
ation of Wisconsin Democratic voters and their Fourteenth
Amendment right to equal protection. The plaintiffs
named several members of the state election commission
as defendants in the action. Id., at 36, ¶¶28–30.
The election officials moved to dismiss the complaint.
They argued, among other things, that the plaintiffs
lacked standing to challenge the constitutionality of Act 43
as a whole because, as individual voters, their legally
protected interests extend only to the makeup of the legis­
lative districts in which they vote. A three-judge panel of
the District Court, see 28 U.S. C. §2284(a), denied the
defendants’ motion. In the District Court’s view, the
plaintiffs “identif[ied] their injury as not simply their
inability to elect a representative in their own districts,
but also their reduced opportunity to be represented by
Democratic legislators across the state.” Whitford v.
Nichol, 151 F. Supp. 3d 918, 924 (WD Wis. 2015). It there­
fore followed, in the District Court’s opinion, that
“[b]ecause plaintiffs’ alleged injury in this case relates to
their statewide representation, . . . they should be permit­
ted to bring a statewide claim.” Id., at 926.
 Cite as: 585 U. S. ____ (2018) 5
Opinion of the Court
The case proceeded to trial, where the plaintiffs pre­
sented testimony from four fact witnesses. The first was
lead plaintiff William Whitford, a retired law professor at
the University of Wisconsin in Madison. Whitford testi­
fied that he lives in Madison in the 76th Assembly Dis­
trict, and acknowledged on cross-examination that this is,
under any plausible circumstances, a heavily Democratic
district. Under Act 43, the Democratic share of the As­
sembly vote in Whitford’s district is 81.9%; under the
plaintiffs’ ideal map—their Demonstration Plan—the
projected Democratic share of the Assembly vote in Whit­
ford’s district would be 82%. 147 Record 35–36. Whitford
therefore conceded that Act 43 had not “affected [his]
ability to vote for and elect a Democrat in [his] district.”
Id., at 37. Whitford testified that he had nevertheless
suffered a harm “relate[d] to [his] ability to engage in
campaign activity to achieve a majority in the Assembly
and the Senate.” Ibid. As he explained, “[t]he only practi­
cal way to accomplish my policy objectives is to get a
majority of the Democrats in the Assembly and the Senate
ideally in order to get the legislative product I prefer.” Id.,
at 33.
The plaintiffs also presented the testimony of legislative
aides Adam Foltz and Tad Ottman, as well as that of
Professor Ronald Gaddie, a political scientist who helped
design the Act 43 districting map, regarding how that map
was designed and adopted. In particular, Professor Gad-
die testified about his creation of what he and the District
Court called “S curves”: color-coded tables of the estimated
partisan skew of different draft redistricting maps. See
218 F. Supp. 3d, at 850, 858. The colors corresponded
with assessments regarding whether different districts
tilted Republican or Democratic under various statewide
political scenarios. The S curve for the map that was
eventually adopted projected that “Republicans would
maintain a majority under any likely voting scenario,”
6 GILL v. WHITFORD
Opinion of the Court
with Democrats needing 54% of the statewide vote to
secure a majority in the legislature. Id., at 852.
Finally, the parties presented testimony from four ex­
pert witnesses. The plaintiffs’ experts, Professor Kenneth
Mayer and Professor Simon Jackman, opined that—
according to their efficiency-gap analyses—the Act 43 map
would systematically favor Republicans for the duration of
the decade. See id., at 859–861. The defendants’ experts,
Professor Nicholas Goedert and Sean Trende, opined that
efficiency gaps alone are unreliable measures of durable
partisan advantage, and that the political geography of
Wisconsin currently favors Republicans because Demo­
crats—who tend to be clustered in large cities—are ineffi­
ciently distributed in many parts of Wisconsin for purposes
of winning elections. See id., at 861–862.
At the close of evidence, the District Court concluded—
over the dissent of Judge Griesbach—that the plaintiffs
had proved a violation of the First and Fourteenth
Amendments. The court set out a three-part test for
identifying unconstitutional gerrymanders: A redistricting
map violates the First Amendment and the Equal Protec­
tion Clause of the Fourteenth Amendment if it “(1) is
intended to place a severe impediment on the effectiveness
of the votes of individual citizens on the basis of their
political affiliation, (2) has that effect, and (3) cannot be
justified on other, legitimate legislative grounds.” Id.,
at 884.
The court went on to find, based on evidence concerning
the manner in which Act 43 had been adopted, that “one of
the purposes of Act 43 was to secure Republican control of
the Assembly under any likely future electoral scenario for
the remainder of the decade.” Id., at 896. It also found
that the “more efficient distribution of Republican voters
has allowed the Republican Party to translate its votes
into seats with significantly greater ease and to achieve—
and preserve—control of the Wisconsin legislature.” Id.,
Cite as: 585 U. S. ____ (2018) 7
Opinion of the Court
at 905. As to the third prong of its test, the District Court
concluded that the burdens the Act 43 map imposed on
Democrats could not be explained by “legitimate state
prerogatives [or] neutral factors.” Id., at 911. The court
recognized that “Wisconsin’s political geography, particu­
larly the high concentration of Democratic voters in urban
centers like Milwaukee and Madison, affords the Republi­
can Party a natural, but modest, advantage in the district­
ing process,” but found that this inherent geographic
disparity did not account for the magnitude of the Repub­
lican advantage. Id., at 921, 924.
Regarding standing, the court held that the plaintiffs
had a “cognizable equal protection right against state-
imposed barriers on [their] ability to vote effectively for
the party of [their] choice.” Id., at 928. It concluded that
Act 43 “prevent[ed] Wisconsin Democrats from being able
to translate their votes into seats as effectively as Wiscon­
sin Republicans,” and that “Wisconsin Democrats, there­
fore, have suffered a personal injury to their Equal Protec­
tion rights.” Ibid. The court turned away the defendants’
argument that the plaintiffs’ injury was not sufficiently
particularized by finding that “[t]he harm that the plain­
tiffs have experienced . . . is one shared by Democratic
voters in the State of Wisconsin. The dilution of their
votes is both personal and acute.” Id., at 930.
Judge Griesbach dissented. He wrote that, under this
Court’s existing precedents, “partisan intent” to benefit
one party rather than the other in districting “is not ille­
gal, but is simply the consequence of assigning the task of
redistricting to the political branches.” Id., at 939. He
observed that the plaintiffs had not attempted to prove
that “specific districts . . . had been gerrymandered,” but
rather had “relied on statewide data and calculations.”
Ibid. And he argued that the plaintiffs’ proof, resting as it
did on statewide data, had “no relevance to any gerryman­
dering injury alleged by a voter in a single district.” Id., at
8 GILL v. WHITFORD
Opinion of the Court
952. On that basis, Judge Griesbach would have entered
judgment for the defendants.
The District Court enjoined the defendants from using
the Act 43 map in future elections and ordered them to
have a remedial districting plan in place no later than
November 1, 2017. The defendants appealed directly to
this Court, as provided under 28 U.S. C. §1253. We
stayed the District Court’s judgment and postponed con­
sideration of our jurisdiction. 582 U. S. ___ (2017).
II
A
Over the past five decades this Court has been repeat­
edly asked to decide what judicially enforceable limits, if
any, the Constitution sets on the gerrymandering of voters
along partisan lines. Our previous attempts at an answer
have left few clear landmarks for addressing the question.
What our precedents have to say on the topic is, however,
instructive as to the myriad competing considerations that
partisan gerrymandering claims involve. Our efforts to
sort through those considerations have generated conflict­
ing views both of how to conceive of the injury arising from
partisan gerrymandering and of the appropriate role for
the Federal Judiciary in remedying that injury.
Our first consideration of a partisan gerrymandering
claim came in Gaffney v. Cummings, 412 U.S. 735 (1973).
There a group of plaintiffs challenged the constitutionality
of a Connecticut redistricting plan that “consciously and
overtly adopted and followed a policy of ‘political fairness,’
which aimed at a rough scheme of proportional represen­
tation of the two major political parties.” Id., at 738. To
that end, the redistricting plan broke up numerous towns,
“wiggl[ing] and joggl[ing]” district boundary lines in order
to “ferret out pockets of each party’s strength.” Id., at 738,
and n. 3, 752, n. 18. The plaintiffs argued that, notwith­
standing the rough population equality of the districts, the
Cite as: 585 U. S. ____ (2018) 9
Opinion of the Court
plan was unconstitutional because its consciously political
design was “nothing less than a gigantic political gerry­
mander.” Id., at 752. This Court rejected that claim. We
reasoned that it would be “idle” to hold that “any political
consideration taken into account in fashioning a reappor­
tionment plan is sufficient to invalidate it,” because dis­
tricting “inevitably has and is intended to have substan­
tial political consequences.” Id., at 752–753.
Thirteen years later came Davis v. Bandemer, 478 U.S.
109 (1986). Unlike the bipartisan gerrymander at issue in
Gaffney, the allegation in Bandemer was that Indiana
Republicans had gerrymandered Indiana’s legislative
districts “to favor Republican incumbents and candidates
and to disadvantage Democratic voters” through what the
plaintiffs called the “stacking” (packing) and “splitting”
(cracking) of Democrats. 478 U.S., at 116–117 (plurality
opinion). A majority of the Court agreed that the case
before it was justiciable. Id., at 125, 127. The Court could
not, however, settle on a standard for what constitutes an
unconstitutional partisan gerrymander.
Four Justices would have required the Bandemer plain­
tiffs to “prove both intentional discrimination against an
identifiable political group and an actual discriminatory
effect on that group.” Id., at 127. In that plurality’s view,
the plaintiffs had failed to make a sufficient showing on
the latter point because their evidence of unfavorable
election results for Democrats was limited to a single
election cycle. See id., at 135.
Three Justices, concurring in the judgment, would have
held that the “Equal Protection Clause does not supply
judicially manageable standards for resolving purely
political gerrymandering claims.” Id., at 147 (opinion of
O’Connor, J.). Justice O’Connor took issue, in particular,
with the plurality’s focus on factual questions concerning
“statewide electoral success.” Id., at 158. She warned
that allowing district courts to “strike down apportion­
10 GILL v. WHITFORD
Opinion of the Court
ment plans on the basis of their prognostications as to the
outcome of future elections or future apportionments
invites ‘findings’ on matters as to which neither judges nor
anyone else can have any confidence.” Id., at 160.
Justice Powell, joined by Justice Stevens, concurred in
part and dissented in part. In his view, the plaintiffs’
claim was not simply that their “voting strength was
diluted statewide,” but rather that “certain key districts
were grotesquely gerrymandered to enhance the election
prospects of Republican candidates.” Id., at 162, 169.
Thus, he would have focused on the question “whether the
boundaries of the voting districts have been distorted
deliberately and arbitrarily to achieve illegitimate ends.”
Id., at 165.
Eighteen years later, we revisited the issue in Vieth v.
Jubelirer, 541 U.S. 267 (2004). In that case the plaintiffs
argued that Pennsylvania’s Legislature had created “me­
andering and irregular” congressional districts that “ig­
nored all traditional redistricting criteria, including the
preservation of local government boundaries,” in order to
provide an advantage to Republican candidates for Con­
gress. Id., at 272–273 (plurality opinion) (brackets
omitted).
The Vieth Court broke down on numerous lines. Writ­
ing for a four-Justice plurality, Justice Scalia would have
held that the plaintiffs’ claims were nonjusticiable because
there was no “judicially discernible and manageable
standard” by which to decide them. Id., at 306. On those
grounds, the plurality affirmed the dismissal of the claims.
Ibid. JUSTICE KENNEDY concurred in the judgment. He
noted that “there are yet no agreed upon substantive
principles of fairness in districting,” and that, consequently,
“we have no basis on which to define clear, manageable,
and politically neutral standards for measuring the par­
ticular burden” on constitutional rights. Id., at 307–308.
He rejected the principle advanced by the plaintiffs—that
Cite as: 585 U. S. ____ (2018) 11
Opinion of the Court
“a majority of voters in [Pennsylvania] should be able to
elect a majority of [Pennsylvania’s] congressional delega­
tion”—as a “precept” for which there is “no authority.” Id.,
at 308. Yet JUSTICE KENNEDY recognized the possibility
that “in another case a standard might emerge that suit-
ably demonstrates how an apportionment’s de facto incor­
poration of partisan classifications burdens” representa­
tional rights. Id., at 312.
Four Justices dissented in three different opinions.
Justice Stevens would have permitted the plaintiffs’
claims to proceed on a district-by-district basis, using a
legal standard similar to the standard for racial gerry­
mandering set forth in Shaw v. Hunt, 517 U.S. 899
(1996). See 541 U.S., at 335–336, 339. Under this stand­
ard, any district with a “bizarre shape” for which the only
possible explanation was “a naked desire to increase parti­
san strength” would be found unconstitutional under the
Equal Protection Clause. Id., at 339. Justice Souter,
joined by JUSTICE GINSBURG, agreed that a plaintiff alleg­
ing unconstitutional partisan gerrymandering should
proceed on a district-by-district basis, as “we would be able
to call more readily on some existing law when we defined
what is suspect at the district level.” See id., at 346–347.
JUSTICE BREYER dissented on still other grounds. In his
view, the drawing of single-member legislative districts—
even according to traditional criteria—is “rarely . . . politi­
cally neutral.” Id., at 359. He therefore would have dis­
tinguished between gerrymandering for passing political
advantage and gerrymandering leading to the “unjustified
entrenchment” of a political party. Id., at 360–361.
The Court last took up this question in League of United
Latin American Citizens v. Perry, 548 U.S. 399 (2006)
(LULAC). The plaintiffs there challenged a mid-decade
redistricting map passed by the Texas Legislature. As in
Vieth, a majority of the Court could find no justiciable
standard by which to resolve the plaintiffs’ partisan ger­
12 GILL v. WHITFORD
Opinion of the Court
rymandering claims. Relevant to this case, an amicus
brief in support of the LULAC plaintiffs proposed a “sym­
metry standard” to “measure partisan bias” by comparing
how the two major political parties “would fare hypotheti­
cally if they each . . . received a given percentage of the
vote.” 548 U.S., at 419 (opinion of KENNEDY, J.). JUSTICE
KENNEDY noted some wariness at the prospect of “adopt­
ing a constitutional standard that invalidates a map based
on unfair results that would occur in a hypothetical state
of affairs.” Id., at 420. Aside from that problem, he wrote,
the partisan bias standard shed no light on “how much
partisan dominance is too much.” Ibid. JUSTICE
KENNEDY therefore concluded that “asymmetry alone is
not a reliable measure of unconstitutional partisanship.”
Ibid.
Justice Stevens would have found that the Texas map
was a partisan gerrymander based in part on the asym­
metric advantage it conferred on Republicans in convert­
ing votes to seats. Id., at 466–467, 471–473 (opinion
concurring in part and dissenting in part). Justice Souter,
writing for himself and JUSTICE GINSBURG, noted that he
would not “rule out the utility of a criterion of symmetry,”
and that “further attention could be devoted to the admin­
istrability of such a criterion at all levels of redistricting
and its review.” Id., at 483–484 (opinion concurring in
part and dissenting in part).
B
At argument on appeal in this case, counsel for the
plaintiffs argued that this Court can address the problem
of partisan gerrymandering because it must: The Court
should exercise its power here because it is the “only
institution in the United States” capable of “solv[ing] this
problem.” Tr. of Oral Arg. 62. Such invitations must be
answered with care. “Failure of political will does not
justify unconstitutional remedies.” Clinton v. City of New
Cite as: 585 U. S. ____ (2018) 13
Opinion of the Court
York, 524 U.S. 417, 449 (1998) (KENNEDY, J., concurring).
Our power as judges to “say what the law is,” Marbury v.
Madison, 1 Cranch 137, 177 (1803), rests not on the de­
fault of politically accountable officers, but is instead
grounded in and limited by the necessity of resolving,
according to legal principles, a plaintiff ’s particular claim
of legal right.
Our considerable efforts in Gaffney, Bandemer, Vieth,
and LULAC leave unresolved whether such claims may be
brought in cases involving allegations of partisan gerry­
mandering. In particular, two threshold questions re­
main: what is necessary to show standing in a case of this
sort, and whether those claims are justiciable. Here we do
not decide the latter question because the plaintiffs in this
case have not shown standing under the theory upon
which they based their claims for relief.
To ensure that the Federal Judiciary respects “the
proper—and properly limited—role of the courts in a
democratic society,” Allen v. Wright, 468 U.S. 737, 750
(1984), a plaintiff may not invoke federal-court jurisdiction
unless he can show “a personal stake in the outcome of the
controversy.” Baker, 369 U.S., at 204. A federal court is
not “a forum for generalized grievances,” and the require­
ment of such a personal stake “ensures that courts exer­
cise power that is judicial in nature.” Lance, 549 U.S., at
439, 441. We enforce that requirement by insisting that a
plaintiff satisfy the familiar three-part test for Article III
standing: that he “(1) suffered an injury in fact, (2) that is
fairly traceable to the challenged conduct of the defendant,
and (3) that is likely to be redressed by a favorable judicial
decision.” Spokeo, Inc. v. Robins, 578 U. S. ___, ___ (2016)
(slip op., at 6). Foremost among these requirements is
injury in fact—a plaintiff ’s pleading and proof that he has
suffered the “invasion of a legally protected interest” that
is “concrete and particularized,” i.e., which “affect[s] the
plaintiff in a personal and individual way.” Lujan v.
14 GILL v. WHITFORD
Opinion of the Court
Defenders of Wildlife, 504 U.S. 555, 560, and n. 1 (1992).
We have long recognized that a person’s right to vote is
“individual and personal in nature.” Reynolds v. Sims,
377 U.S. 533, 561 (1964). Thus, “voters who allege facts
showing disadvantage to themselves as individuals have
standing to sue” to remedy that disadvantage. Baker, 369
U.S., at 206. The plaintiffs in this case alleged that they
suffered such injury from partisan gerrymandering, which
works through “packing” and “cracking” voters of one
party to disadvantage those voters. 1 Ohio App. 28–29, 32–33,
Complaint ¶¶5, 15. That is, the plaintiffs claim a consti­
tutional right not to be placed in legislative districts delib­
erately designed to “waste” their votes in elections where
their chosen candidates will win in landslides (packing) or
are destined to lose by closer margins (cracking). Id., at
32–33, ¶15.
To the extent the plaintiffs’ alleged harm is the dilution
of their votes, that injury is district specific. An individual
voter in Wisconsin is placed in a single district. He votes
for a single representative. The boundaries of the district,
and the composition of its voters, determine whether and
to what extent a particular voter is packed or cracked.
This “disadvantage to [the voter] as [an] individual[ ],”
Baker, 369 U.S., at 206, therefore results from the bound­
aries of the particular district in which he resides. And a
plaintiff ’s remedy must be “limited to the inadequacy that
produced [his] injury in fact.” Lewis v. Casey, 518 U.S.
343, 357 (1996). In this case the remedy that is proper
and sufficient lies in the revision of the boundaries of the
individual’s own district.
For similar reasons, we have held that a plaintiff who
alleges that he is the object of a racial gerrymander—a
drawing of district lines on the basis of race—has standing
to assert only that his own district has been so gerryman­
dered. See United States v. Hays, 515 U.S. 737, 744–745
(1995). A plaintiff who complains of gerrymandering, but
Cite as: 585 U. S. ____ (2018) 15
Opinion of the Court
who does not live in a gerrymandered district, “assert[s]
only a generalized grievance against governmental con­
duct of which he or she does not approve.” Id., at 745.
Plaintiffs who complain of racial gerrymandering in their
State cannot sue to invalidate the whole State’s legislative
districting map; such complaints must proceed “district­
by-district.” Alabama Legislative Black Caucus v. Ala­
bama, 575 U. S. ___, ___ (2015) (slip op., at 6).
The plaintiffs argue that their claim of statewide injury
is analogous to the claims presented in Baker and Reyn­
olds, which they assert were “statewide in nature” because
they rested on allegations that “districts throughout a
state [had] been malapportioned.” Brief for Appellees 29.
But, as we have already noted, the holdings in Baker and
Reynolds were expressly premised on the understanding
that the injuries giving rise to those claims were “individ­
ual and personal in nature,” Reynolds, 377 U.S., at 561,
because the claims were brought by voters who alleged
“facts showing disadvantage to themselves as individuals,”
Baker, 369 U.S., at 206.
The plaintiffs’ mistaken insistence that the claims in
Baker and Reynolds were “statewide in nature” rests on a
failure to distinguish injury from remedy. In those mal­
apportionment cases, the only way to vindicate an indi­
vidual plaintiff ’s right to an equally weighted vote was
through a wholesale “restructuring of the geographical
distribution of seats in a state legislature.” Reynolds, 377
U.S., at 561; see, e.g., Moss v. Burkhart, 220 F. Supp. 149,
156–160 (WD Okla. 1963) (directing the county-by-county
reapportionment of the Oklahoma Legislature), aff ’d
sub nom. Williams v. Moss, 378 U.S. 558 (1964) ( per
curiam).
Here, the plaintiffs’ partisan gerrymandering claims
turn on allegations that their votes have been diluted.
That harm arises from the particular composition of the
voter’s own district, which causes his vote—having been
16 GILL v. WHITFORD
Opinion of the Court
packed or cracked—to carry less weight than it would
carry in another, hypothetical district. Remedying the
individual voter’s harm, therefore, does not necessarily
require restructuring all of the State’s legislative districts.
It requires revising only such districts as are necessary to
reshape the voter’s district—so that the voter may be
unpacked or uncracked, as the case may be. Cf. Alabama
Legislative Black Caucus, 575 U. S., at ___ (slip op., at 7).
This fits the rule that a “remedy must of course be limited
to the inadequacy that produced the injury in fact that the
plaintiff has established.” Lewis, 518 U.S., at 357.
The plaintiffs argue that their legal injury is not limited
to the injury that they have suffered as individual voters,
but extends also to the statewide harm to their interest “in
their collective representation in the legislature,” and in
influencing the legislature’s overall “composition and
policymaking.” Brief for Appellees 31. But our cases to
date have not found that this presents an individual and
personal injury of the kind required for Article III stand­
ing. On the facts of this case, the plaintiffs may not rely
on “the kind of undifferentiated, generalized grievance
about the conduct of government that we have refused to
countenance in the past.” Lance, 549 U.S., at 442. A
citizen’s interest in the overall composition of the legisla­
ture is embodied in his right to vote for his representative.
And the citizen’s abstract interest in policies adopted by
the legislature on the facts here is a nonjusticiable “gen­
eral interest common to all members of the public.”
Ex parte Lévitt, 302 U.S. 633, 634 (1937) (per curiam).
We leave for another day consideration of other possible
theories of harm not presented here and whether those
theories might present justiciable claims giving rise to
statewide remedies. JUSTICE KAGAN’S concurring opinion
endeavors to address “other kinds of constitutional harm,”
see post, at 8, perhaps involving different kinds of plain­
tiffs, see post, at 9, and differently alleged burdens, see
Cite as: 585 U. S. ____ (2018) 17
Opinion of the Court
ibid. But the opinion of the Court rests on the under­
standing that we lack jurisdiction to decide this case,
much less to draw speculative and advisory conclusions
regarding others. See Public Workers v. Mitchell, 330
U.S. 75, 90 (1947) (noting that courts must “respect the
limits of [their] unique authority” and engage in “[j]udicial
exposition . . . only when necessary to decide definite
issues between litigants”). The reasoning of this Court
with respect to the disposition of this case is set forth in
this opinion and none other. And the sum of the standing
principles articulated here, as applied to this case, is that
the harm asserted by the plaintiffs is best understood as
arising from a burden on those plaintiffs’ own votes. In
this gerrymandering context that burden arises through a
voter’s placement in a “cracked” or “packed” district.
C
Four of the plaintiffs in this case—Mary Lynne
Donohue, Wendy Sue Johnson, Janet Mitchell, and Je­
rome Wallace—pleaded a particularized burden along
such lines. They alleged that Act 43 had “dilut[ed] the
influence” of their votes as a result of packing or cracking
in their legislative districts. See 1 Ohio App. 34–36, Complaint
¶¶20, 23, 24, 26. The facts necessary to establish stand­
ing, however, must not only be alleged at the pleading
stage, but also proved at trial. See Defenders of Wildlife,
504 U.S., at 561. As the proceedings in the District Court
progressed to trial, the plaintiffs failed to meaningfully
pursue their allegations of individual harm. The plaintiffs
did not seek to show such requisite harm since, on this
record, it appears that not a single plaintiff sought to
prove that he or she lives in a cracked or packed district.
They instead rested their case at trial—and their argu­
ments before this Court—on their theory of statewide
injury to Wisconsin Democrats, in support of which they
offered three kinds of evidence.
18 GILL v. WHITFORD
Opinion of the Court
First, the plaintiffs presented the testimony of the lead
plaintiff, Professor Whitford. But Whitford’s testimony
does not support any claim of packing or cracking of him­
self as a voter. Indeed, Whitford expressly acknowledged
that Act 43 did not affect the weight of his vote. 147 Rec­
ord 37. His testimony points merely to his hope of achiev­
ing a Democratic majority in the legislature—what the
plaintiffs describe here as their shared interest in the
composition of “the legislature as a whole.” Brief for Ap­
pellees 32. Under our cases to date, that is a collective
political interest, not an individual legal interest, and the
Court must be cautious that it does not become “a forum
for generalized grievances.” Lance, 549 U.S., at 439, 441.
Second, the plaintiffs provided evidence regarding the
mapmakers’ deliberations as they drew district lines. As
the District Court recounted, the plaintiffs’ evidence
showed that the mapmakers “test[ed] the partisan
makeup and performance of districts as they might be
configured in different ways.” 218 F. Supp. 3d, at 891.
Each of the mapmakers’ alternative configurations came
with a table that listed the number of “Safe” and “Lean”
seats for each party, as well as “Swing” seats. Ibid. The
mapmakers also labeled certain districts as ones in which
“GOP seats [would be] strengthened a lot,” id., at 893; 2
Ohio App. 344, or which would result in “Statistical Pick Ups”
for Republicans. 218 F. Supp. 3d, at 893 (alterations
omitted). And they identified still other districts in which
“GOP seats [would be] strengthened a little,” “weakened a
little,” or were “likely lost.” Ibid.
The District Court relied upon this evidence in conclud­
ing that, “from the outset of the redistricting process, the
drafters sought to understand the partisan effect of the
maps they were drawing.” Id., at 895. That evidence may
well be pertinent with respect to any ultimate determina­
tion whether the plaintiffs may prevail in their claims
against the defendants, assuming such claims present a
Cite as: 585 U. S. ____ (2018) 19
Opinion of the Court
justiciable controversy. But the question at this point is
whether the plaintiffs have established injury in fact.
That turns on effect, not intent, and requires a showing of
a burden on the plaintiffs’ votes that is “actual or immi­
nent, not ‘conjectural’ or ‘hypothetical.’ ” Defenders of
Wildlife, 504 U.S., at 560.
Third, the plaintiffs offered evidence concerning the
impact that Act 43 had in skewing Wisconsin’s statewide
political map in favor of Republicans. This evidence,
which made up the heart of the plaintiffs’ case, was de­
rived from partisan-asymmetry studies similar to those
discussed in LULAC. The plaintiffs contend that these
studies measure deviations from “partisan symmetry,”
which they describe as the “social scientific tenet that
[districting] maps should treat parties symmetrically.”
Brief for Appellees 37. In the District Court, the plaintiffs’
case rested largely on a particular measure of partisan
asymmetry—the “efficiency gap” of wasted votes. See
supra, at 3–4. That measure was first developed in two
academic articles published shortly before the initiation of
this lawsuit. See Stephanopoulos & McGhee, Partisan
Gerrymandering and the Efficiency Gap, 82 U. Chi.
L. Rev. 831 (2015); McGhee, Measuring Partisan Bias in
Single-Member District Electoral Systems, 39 Leg. Studies
Q. 55 (2014).
The plaintiffs asserted in their complaint that the “effi­
ciency gap captures in a single number all of a district
plan’s cracking and packing.” 1 Ohio App. 28–29, Complaint ¶5
(emphasis deleted). That number is calculated by sub­
tracting the statewide sum of one party’s wasted votes
from the statewide sum of the other party’s wasted votes
and dividing the result by the statewide sum of all votes
cast, where “wasted votes” are defined as all votes cast for
a losing candidate and all votes cast for a winning candi­
date beyond the 50% plus one that ensures victory. See
Brief for Eric McGhee as Amicus Curiae 6, and n. 3. The
20 GILL v. WHITFORD
Opinion of the Court
larger the number produced by that calculation, the greater
the asymmetry between the parties in their efficiency in
converting votes into legislative seats. Though they take
no firm position on the matter, the plaintiffs have suggested
that an efficiency gap in the range of 7% to 10% should
trigger constitutional scrutiny. See Brief for Appellees
52–53, and n. 17.
The plaintiffs and their amici curiae promise us that the
efficiency gap and similar measures of partisan asym­
metry will allow the federal courts—armed with just “a
pencil and paper or a hand calculator”—to finally solve the
problem of partisan gerrymandering that has confounded
the Court for decades. Brief for Heather K. Gerken et al.
as Amici Curiae 27 (citing Wang, Let Math Save Our
Democracy, N. Y. Times, Dec. 5, 2015). We need not doubt
the plaintiffs’ math. The difficulty for standing purposes
is that these calculations are an average measure. They
do not address the effect that a gerrymander has on the
votes of particular citizens. Partisan-asymmetry metrics
such as the efficiency gap measure something else en-
tirely: the effect that a gerrymander has on the fortunes of
political parties.
Consider the situation of Professor Whitford, who lives
in District 76, where, defendants contend, Democrats are
“naturally” packed due to their geographic concentration,
with that of plaintiff Mary Lynne Donohue, who lives in
Assembly District 26 in Sheboygan, where Democrats like
her have allegedly been deliberately cracked. By all ac­
counts, Act 43 has not affected Whitford’s individual vote
for his Assembly representative—even plaintiffs’ own
demonstration map resulted in a virtually identical dis­
trict for him. Donohue, on the other hand, alleges that Act
43 burdened her individual vote. Yet neither the effi-
ciency gap nor the other measures of partisan asymmetry
offered by the plaintiffs are capable of telling the differ­
ence between what Act 43 did to Whitford and what it did
Cite as: 585 U. S. ____ (2018) 21
Opinion of the Court
to Donohue. The single statewide measure of partisan
advantage delivered by the efficiency gap treats Whitford
and Donohue as indistinguishable, even though their
individual situations are quite different.
That shortcoming confirms the fundamental problem
with the plaintiffs’ case as presented on this record. It is a
case about group political interests, not individual legal
rights. But this Court is not responsible for vindicating
generalized partisan preferences. The Court’s constitu­
tionally prescribed role is to vindicate the individual rights
of the people appearing before it.
III
In cases where a plaintiff fails to demonstrate Article III
standing, we usually direct the dismissal of the plaintiff ’s
claims. See, e.g., DaimlerChrysler Corp. v. Cuno, 547 U.S.
332, 354 (2006). This is not the usual case. It concerns an
unsettled kind of claim this Court has not agreed upon,
the contours and justiciability of which are unresolved.
Under the circumstances, and in light of the plaintiffs’
allegations that Donohue, Johnson, Mitchell, and Wallace
live in districts where Democrats like them have been
packed or cracked, we decline to direct dismissal.
We therefore remand the case to the District Court so
that the plaintiffs may have an opportunity to prove con­
crete and particularized injuries using evidence—unlike
the bulk of the evidence presented thus far—that would
tend to demonstrate a burden on their individual votes.
Cf. Alabama Legislative Black Caucus, 575 U. S., at ___
(slip op., at 8) (remanding for further consideration of the
plaintiffs’ gerrymandering claims on a district-by-district
basis). We express no view on the merits of the plaintiffs’
case. We caution, however, that “standing is not dis­
pensed in gross”: A plaintiff ’s remedy must be tailored to
redress the plaintiff ’s particular injury. Cuno, 547 U.S.,
at 353.
22 GILL v. WHITFORD
Opinion of the Court
The judgment of the District Court is vacated, and the
case is remanded for further proceedings consistent with
this opinion.
It is so ordered.
Cite as: 585 U. S. ____ (2018) 1
KAGAN, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–1161
_________________
BEVERLY R. GILL, ET AL., APPELLANTS v.
WILLIAM WHITFORD, ET AL.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF WISCONSIN
[June 18, 2018]
JUSTICE KAGAN, with whom JUSTICE GINSBURG,
JUSTICE BREYER, and JUSTICE SOTOMAYOR join,
concurring.
The Court holds today that a plaintiff asserting a parti­
san gerrymandering claim based on a theory of vote dilu­
tion must prove that she lives in a packed or cracked
district in order to establish standing. See ante, at 14–17.
The Court also holds that none of the plaintiffs here have
yet made that required showing. See ante, at 17.
I agree with both conclusions, and with the Court’s
decision to remand this case to allow the plaintiffs to prove
that they live in packed or cracked districts, see ante, at
21. I write to address in more detail what kind of evidence
the present plaintiffs (or any additional ones) must offer to
support that allegation. And I write to make some obser­
vations about what would happen if they succeed in prov­
ing standing—that is, about how their vote dilution case
could then proceed on the merits. The key point is that
the case could go forward in much the same way it did
below: Given the charges of statewide packing and crack­
ing, affecting a slew of districts and residents, the chal­
lengers could make use of statewide evidence and seek a
statewide remedy.
I also write separately because I think the plaintiffs
may have wanted to do more than present a vote dilution
2 GILL v. WHITFORD
KAGAN, J., concurring
theory. Partisan gerrymandering no doubt burdens indi­
vidual votes, but it also causes other harms. And at some
points in this litigation, the plaintiffs complained of a
different injury—an infringement of their First Amend­
ment right of association. The Court rightly does not
address that alternative argument: The plaintiffs did not
advance it with sufficient clarity or concreteness to make
it a real part of the case. But because on remand they
may well develop the associational theory, I address the
standing requirement that would then apply. As I’ll ex­
plain, a plaintiff presenting such a theory would not need
to show that her particular voting district was packed or
cracked for standing purposes because that fact would
bear no connection to her substantive claim. Indeed,
everything about the litigation of that claim—from stand­
ing on down to remedy—would be statewide in nature.
Partisan gerrymandering, as this Court has recognized,
is “incompatible with democratic principles.” Arizona
State Legislature v. Arizona Independent Redistricting
Comm’n, 576 U. S. ___, ___ (2015) (slip op., at 1) (quoting
Vieth v. Jubelirer, 541 U.S. 267, 292 (2004) (plurality
opinion); alterations omitted). More effectively every day,
that practice enables politicians to entrench themselves in
power against the people’s will. And only the courts can
do anything to remedy the problem, because gerrymanders
benefit those who control the political branches. None of
those facts gives judges any excuse to disregard Article
III’s demands. The Court is right to say they were not met
here. But partisan gerrymandering injures enough indi­
viduals and organizations in enough concrete ways
to ensure that standing requirements, properly applied,
will not often or long prevent courts from reaching the
merits of cases like this one. Or from insisting, when
they do, that partisan officials stop degrading the nation’s
democracy.
Cite as: 585 U. S. ____ (2018) 3
KAGAN, J., concurring
I
As the Court explains, the plaintiffs’ theory in this case
focuses on vote dilution. See ante, at 15 (“Here, the plain­
tiffs’ partisan gerrymandering claims turn on allegations
that their votes have been diluted”); see also ante, at 14,
16–17. That is, the plaintiffs assert that Wisconsin’s State
Assembly Map has caused their votes “to carry less weight
than [they] would carry in another, hypothetical district.”
Ante, at 16. And the mechanism used to wreak that harm
is “packing” and “cracking.” Ante, at 14. In a relatively
few districts, the mapmakers packed supermajorities of
Democratic voters—well beyond the number needed for a
Democratic candidate to prevail. And in many more dis­
tricts, dispersed throughout the State, the mapmakers
cracked Democratic voters—spreading them sufficiently
thin to prevent them from electing their preferred candi­
dates. The result of both practices is to “waste” Demo­
crats’ votes. Ibid.
The harm of vote dilution, as this Court has long stated,
is “individual and personal in nature.” Reynolds v. Sims,
377 U.S. 533, 561 (1964); see ante, at 15. It arises when
an election practice—most commonly, the drawing of
district lines—devalues one citizen’s vote as compared to
others. Of course, such practices invariably affect more
than one citizen at a time. For example, our original one-
person, one-vote cases considered how malapportioned
maps “contract[ed] the value” of urban citizens’ votes
while “expand[ing]” the value of rural citizens’ votes.
Wesberry v. Sanders, 376 U.S. 1, 7 (1964). But we under­
stood the injury as giving diminished weight to each par­
ticular vote, even if millions were so touched. In such
cases, a voter living in an overpopulated district suffered
“disadvantage to [herself] as [an] individual[ ]”: Her vote
counted for less than the votes of other citizens in her
State. Baker v. Carr, 369 U.S. 186, 206 (1962); see ante,
at 15. And that kind of disadvantage is what a plaintiff
4 GILL v. WHITFORD
KAGAN, J., concurring
asserting a vote dilution claim—in the one-person, one-
vote context or any other—always alleges.
To have standing to bring a partisan gerrymandering
claim based on vote dilution, then, a plaintiff must prove
that the value of her own vote has been “contract[ed].”
Wesberry, 376 U.S., at 7. And that entails showing, as the
Court holds, that she lives in a district that has been
either packed or cracked. See ante, at 17. For packing
and cracking are the ways in which a partisan gerryman­
der dilutes votes. Cf. Voinovich v. Quilter, 507 U.S. 146,
153–154 (1993) (explaining that packing or cracking can
also support racial vote dilution claims). Consider the
perfect form of each variety. When a voter resides in a
packed district, her preferred candidate will win no matter
what; when a voter lives in a cracked district, her chosen
candidate stands no chance of prevailing. But either way,
such a citizen’s vote carries less weight—has less conse­
quence—than it would under a neutrally drawn map. See
ante, at 14, 16. So when she shows that her district has
been packed or cracked, she proves, as she must to estab­
lish standing, that she is “among the injured.” Lujan v.
Defenders of Wildlife, 504 U.S. 555, 563 (1992) (quoting
Sierra Club v. Morton, 405 U.S. 727, 735 (1972)); see ante,
at 17.
In many partisan gerrymandering cases, that threshold
showing will not be hard to make. Among other ways of
proving packing or cracking, a plaintiff could produce an
alternative map (or set of alternative maps)—comparably
consistent with traditional districting principles—under
which her vote would carry more weight. Cf. Ante, at 20
(suggesting how an alternative map may shed light on
vote dilution or its absence); Easley v. Cromartie, 532 U.S.
234, 258 (2001) (discussing the use of alternative maps as
evidence in a racial gerrymandering case); Cooper v. Har-
ris, 581 U. S. ___, ___–___ (2017) (slip op., at 28–34)
(same); Brief for Political Geography Scholars as Amici
Cite as: 585 U. S. ____ (2018) 5
KAGAN, J., concurring
Curiae 12–14 (describing computer simulation techniques
for devising alternative maps). For example, a Democratic
plaintiff living in a 75%-Democratic district could prove
she was packed by presenting a different map, drawn
without a focus on partisan advantage, that would place
her in a 60%-Democratic district. Or conversely, a Demo­
cratic plaintiff residing in a 35%-Democratic district could
prove she was cracked by offering an alternative, neutrally
drawn map putting her in a 50–50 district. The precise
numbers are of no import. The point is that the plaintiff
can show, through drawing alternative district lines, that
partisan-based packing or cracking diluted her vote.
Here, the Court is right that the plaintiffs have so far
failed to make such a showing. See ante, at 17–20. Wil­
liam Whitford was the only plaintiff to testify at trial
about the alleged gerrymander’s effects. He expressly
acknowledged that his district would be materially identi­
cal under any conceivable map, whether or not drawn to
achieve partisan advantage. See ante, at 18, 20. That
means Wisconsin’s plan could not have diluted Whitford’s
own vote. So whatever other claims he might have, see
infra, at 8–9, Whitford is not “among the injured” in a vote
dilution challenge. Lujan, 504 U.S., at 563 (quoting
Sierra Club, 405 U.S., at 735). Four other plaintiffs
differed from Whitford by alleging in the complaint that
they lived in packed or cracked districts. But for whatever
reason, they failed to back up those allegations with evi­
dence as the suit proceeded. See ante, at 17. So they too
did not show the injury—a less valuable vote—central to
their vote dilution theory.
That problem, however, may be readily fixable. The
Court properly remands this case to the District Court “so
that the plaintiffs may have an opportunity” to “demon­
strate a burden on their individual votes.” Ante, at 21.
That means the plaintiffs—both the four who initially
made those assertions and any others (current or newly
6 GILL v. WHITFORD
KAGAN, J., concurring
joined)—now can introduce evidence that their individual
districts were packed or cracked. And if the plaintiffs’
more general charges have a basis in fact, that evidence
may well be at hand. Recall that the plaintiffs here al­
leged—and the District Court found, see 218 F. Supp. 3d
837, 896 (WD Wis. 2016)—that a unified Republican gov­
ernment set out to ensure that Republicans would control
as many State Assembly seats as possible over a decade
(five consecutive election cycles). To that end, the gov­
ernment allegedly packed and cracked Democrats
throughout the State, not just in a particular district (see,
e.g., Benisek v. Lamone, No. 17–333) or region. Assuming
that is true, the plaintiffs should have a mass of packing
and cracking proof, which they can now also present in
district-by-district form to support their standing. In
other words, a plaintiff residing in each affected district
can show, through an alternative map or other evidence,
that packing or cracking indeed occurred there. And if (or
to the extent) that test is met, the court can proceed to
decide all distinctive merits issues and award appropriate
remedies.
When the court addresses those merits questions, it can
consider statewide (as well as local) evidence. Of course,
the court below and others like it are currently debating,
without guidance from this Court, what elements make up
a vote dilution claim in the partisan gerrymandering
context. But assume that the plaintiffs must prove illicit
partisan intent—a purpose to dilute Democrats’ votes in
drawing district lines. The plaintiffs could then offer
evidence about the mapmakers’ goals in formulating the
entire statewide map (which would predictably carry down
to individual districting decisions). So, for example, the
plaintiffs here introduced proof that the mapmakers
looked to partisan voting data when drawing districts
throughout the State—and that they graded draft maps
according to the amount of advantage those maps con­
Cite as: 585 U. S. ____ (2018) 7
KAGAN, J., concurring
ferred on Republicans. See 218 F. Supp. 3d, at 890–896.
This Court has explicitly recognized the relevance of such
statewide evidence in addressing racial gerrymandering
claims of a district-specific nature. “Voters,” we held, “of
course[ ] can present statewide evidence in order to prove
racial gerrymandering in a particular district.” Alabama
Legislative Black Caucus v. Alabama, 575 U. S. ___, ___
(2015) (slip op., at 7). And in particular, “[s]uch evidence
is perfectly relevant” to showing that mapmakers had an
invidious “motive” in drawing the lines of “multiple dis­
tricts in the State.” Id., at ___ (slip op., at 10). The same
should be true for partisan gerrymandering.
Similarly, cases like this one might warrant a statewide
remedy. Suppose that mapmakers pack or crack a critical
mass of State Assembly districts all across the State to
elect as many Republican politicians as possible. And
suppose plaintiffs residing in those districts prevail in a
suit challenging that gerrymander on a vote dilution
theory. The plaintiffs might then receive exactly the relief
sought in this case. To be sure, remedying each plaintiff ’s
vote dilution injury “requires revising only such districts
as are necessary to reshape [that plaintiff ’s] district—so
that the [plaintiff] may be unpacked or uncracked, as the
case may be.” Ante, at 16. But with enough plaintiffs
joined together—attacking all the packed and cracked
districts in a statewide gerrymander—those obligatory
revisions could amount to a wholesale restructuring of the
State’s districting plan. The Court recognizes as much. It
states that a proper remedy in a vote dilution case “does
not necessarily require restructuring all of the State’s
legislative districts.” Ibid. (emphasis added). Not neces­
sarily—but possibly. It all depends on how much redis­
tricting is needed to cure all the packing and cracking that
the mapmakers have done.
8 GILL v. WHITFORD
KAGAN, J., concurring
II
Everything said so far relates only to suits alleging that
a partisan gerrymander dilutes individual votes. That is
the way the Court sees this litigation. See ante, at 14–17.
And as I’ll discuss, that is the most reasonable view. See
infra, at 10–11. But partisan gerrymanders inflict other
kinds of constitutional harm as well. Among those inju­
ries, partisan gerrymanders may infringe the First
Amendment rights of association held by parties, other
political organizations, and their members. The plaintiffs
here have sometimes pointed to that kind of harm. To the
extent they meant to do so, and choose to do so on remand,
their associational claim would occasion a different stand­
ing inquiry than the one in the Court’s opinion.
JUSTICE KENNEDY explained the First Amendment
associational injury deriving from a partisan gerrymander
in his concurring opinion in Vieth, 541 U.S. 267. “Repre­
sentative democracy,” JUSTICE KENNEDY pointed out, is
today “unimaginable without the ability of citizens to band
together” to advance their political beliefs. Id., at 314
(opinion concurring in judgment) (quoting California
Democratic Party v. Jones, 530 U.S. 567, 574 (2000)).
That means significant “First Amendment concerns arise”
when a State purposely “subject[s] a group of voters or
their party to disfavored treatment.” 541 U.S., at 314.
Such action “burden[s] a group of voters’ representational
rights.” Ibid.; see id., at 315 (similarly describing the
“burden[] on a disfavored party and its voters” and the
“burden [on] a group’s representational rights”). And it
does so because of their “political association,” “participa­
tion in the electoral process,” “voting history,” or “expres­
sion of political views.” Id., at 314–315.
As so formulated, the associational harm of a partisan
gerrymander is distinct from vote dilution. Consider an
active member of the Democratic Party in Wisconsin who
resides in a district that a partisan gerrymander has left
Cite as: 585 U. S. ____ (2018) 9
KAGAN, J., concurring
untouched (neither packed nor cracked). His individual
vote carries no less weight than it did before. But if the
gerrymander ravaged the party he works to support, then
he indeed suffers harm, as do all other involved members
of that party. This is the kind of “burden” to “a group of
voters’ representational rights” JUSTICE KENNEDY spoke
of. Id., at 314. Members of the “disfavored party” in the
State, id., at 315, deprived of their natural political
strength by a partisan gerrymander, may face difficulties
fundraising, registering voters, attracting volunteers,
generating support from independents, and recruiting
candidates to run for office (not to mention eventually
accomplishing their policy objectives). See Anderson v.
Celebrezze, 460 U.S. 780, 791–792, and n. 12 (1983) (con­
cluding that similar harms inflicted by a state election law
amounted to a “burden imposed on . . . associational
rights”). And what is true for party members may be
doubly true for party officials and triply true for the party
itself (or for related organizations). Cf. California Demo-
cratic Party, 530 U.S., at 586 (holding that a state law
violated state political parties’ First Amendment rights of
association). By placing a state party at an enduring
electoral disadvantage, the gerrymander weakens its
capacity to perform all its functions.
And if that is the essence of the harm alleged, then the
standing analysis should differ from the one the Court
applies. Standing, we have long held, “turns on the nature
and source of the claim asserted.” Warth v. Seldin, 422
U.S. 490, 500 (1975). Indeed, that idea lies at the root of
today’s opinion. It is because the Court views the harm
alleged as vote dilution that it (rightly) insists that each
plaintiff show packing or cracking in her own district to
establish her standing. See ante, at 14–17; supra, at 3–4.
But when the harm alleged is not district specific, the
proof needed for standing should not be district specific
either. And the associational injury flowing from a
10 GILL v. WHITFORD
KAGAN, J., concurring
statewide partisan gerrymander, whether alleged by a
party member or the party itself, has nothing to do with
the packing or cracking of any single district’s lines. The
complaint in such a case is instead that the gerrymander
has burdened the ability of like-minded people across the
State to affiliate in a political party and carry out that
organization’s activities and objects. See supra, at 8–9.
Because a plaintiff can have that complaint without living
in a packed or cracked district, she need not show what
the Court demands today for a vote dilution claim. Or
said otherwise: Because on this alternative theory, the
valued association and the injury to it are statewide, so too
is the relevant standing requirement.
On occasion, the plaintiffs here have indicated that they
have an associational claim in mind. In addition to re­
peatedly alleging vote dilution, their complaint asserted in
general terms that Wisconsin’s districting plan infringes
their “First Amendment right to freely associate with each
other without discrimination by the State based on that
association.” 1 Ohio App. 61, Complaint ¶91. Similarly, the
plaintiffs noted before this Court that “[b]eyond diluting
votes, partisan gerrymandering offends First Amendment
values by penalizing citizens because of . . . their associa­
tion with a political party.” Brief for Appellees 36 (inter­
nal quotation marks omitted). And finally, the plaintiffs’
evidence of partisan asymmetry well fits a suit alleging
associational injury (although, as noted below, that was
not how it was used, see infra, at 11). As the Court points
out, what those statistical metrics best measure is a ger­
rymander’s effect “on the fortunes of political parties” and
those associated with them. Ante, at 20.
In the end, though, I think the plaintiffs did not suffi­
ciently advance a First Amendment associational theory to
avoid the Court’s holding on standing. Despite referring
to that theory in their complaint, the plaintiffs tried this
case as though it were about vote dilution alone. Their
Cite as: 585 U. S. ____ (2018) 11
KAGAN, J., concurring
testimony and other evidence went toward establishing
the effects of rampant packing and cracking on the value
of individual citizens’ votes. Even their proof of partisan
asymmetry was used for that purpose—although as noted
above, it could easily have supported the alternative the-
ory of associational harm, see supra, at 10. The plaintiffs
joining in this suit do not include the State Democratic
Party (or any related statewide organization). They did
not emphasize their membership in that party, or their
activities supporting it. And they did not speak to any
tangible associational burdens—ways the gerrymander
had debilitated their party or weakened its ability to carry
out its core functions and purposes, see supra, at 8–9.
Even in this Court, when disputing the State’s argument
that they lacked standing, the plaintiffs reiterated their
suit’s core theory: that the gerrymander “intentionally,
severely, durably, and unjustifiably dilutes Democratic
votes.” Brief for Appellees 29–30. Given that theory, the
plaintiffs needed to show that their own votes were indeed
diluted in order to establish standing.
But nothing in the Court’s opinion prevents the plain­
tiffs on remand from pursuing an associational claim, or
from satisfying the different standing requirement that
theory would entail. The Court’s opinion is about a suit
challenging a partisan gerrymander on a particular
ground—that it dilutes the votes of individual citizens.
That opinion “leave[s] for another day consideration of
other possible theories of harm not presented here and
whether those theories might present justiciable claims
giving rise to statewide remedies.” Ante, at 16. And in
particular, it leaves for another day the theory of harm
advanced by JUSTICE KENNEDY in Vieth: that a partisan
gerrymander interferes with the vital “ability of citizens to
band together” to further their political beliefs. 541 U.S.,
at 314 (quoting California Democratic Party, 530 U.S., at
574). Nothing about that injury is “generalized” or “ab­
12 GILL v. WHITFORD
KAGAN, J., concurring
stract,” as the Court says is true of the plaintiffs’ dissatis­
faction with the “overall composition of the legislature.”
Ante, at 16. A suit raising an associational theory com­
plains of concrete “burdens on a disfavored party” and its
members as they pursue their political interests and goals.
Vieth, 541 U.S., at 315 (opinion of KENNEDY, J.); see
supra, at 8–9. And when the suit alleges that a gerry­
mander has imposed those burdens on a statewide basis,
then its litigation should be statewide too—as to standing,
liability, and remedy alike.
III
Partisan gerrymandering jeopardizes “[t]he ordered
working of our Republic, and of the democratic process.”
Vieth, 541 U.S., at 316 (opinion of KENNEDY, J.). It en-
ables a party that happens to be in power at the right time
to entrench itself there for a decade or more, no matter
what the voters would prefer. At its most extreme, the
practice amounts to “rigging elections.” Id., at 317 (inter­
nal quotation marks omitted). It thus violates the most
fundamental of all democratic principles—that “the voters
should choose their representatives, not the other way
around.” Arizona State Legislature, 576 U. S., at ___ (slip
op., at 35) (quoting Berman, Managing Gerrymandering,
83 Texas L. Rev. 781 (2005)).
And the evils of gerrymandering seep into the legisla­
tive process itself. Among the amicus briefs in this case
are two from bipartisan groups of congressional members
and state legislators. They know that both parties gerry­
mander. And they know the consequences. The congres­
sional brief describes a “cascade of negative results” from
excessive partisan gerrymandering: indifference to swing
voters and their views; extreme political positioning de­
signed to placate the party’s base and fend off primary
challenges; the devaluing of negotiation and compromise;
and the impossibility of reaching pragmatic, bipartisan
Cite as: 585 U. S. ____ (2018) 13
KAGAN, J., concurring
solutions to the nation’s problems. Brief for Bipartisan
Group of Current and Former Members of Congress as
Amici Curiae 4; see id., at 10–23. The state legislators tell
a similar story. In their view, partisan gerrymandering
has “sounded the death-knell of bipartisanship,” creating a
legislative environment that is “toxic” and “tribal[ ].” Brief
for Bipartisan Group of 65 Current and Former State
Legislators as Amici Curiae 6, 25.
I doubt James Madison would have been surprised.
What, he asked when championing the Constitution,
would make the House of Representatives work? The
House must be structured, he answered, to instill in its
members “an habitual recollection of their dependence on
the people.” The Federalist No. 57, p. 352 (C. Rossiter ed.
1961). Legislators must be “compelled to anticipate the
moment” when their “exercise of [power] is to be re­
viewed.” Ibid. When that moment does not come—when
legislators can entrench themselves in office despite the
people’s will—the foundation of effective democratic gov­
ernance dissolves.
And our history offers little comfort. Yes, partisan
gerrymandering goes back to the Republic’s earliest days;
and yes, American democracy has survived. But technol­
ogy makes today’s gerrymandering altogether different
from the crude linedrawing of the past. New redistricting
software enables pinpoint precision in designing districts.
With such tools, mapmakers can capture every last bit of
partisan advantage, while still meeting traditional dis­
tricting requirements (compactness, contiguity, and the
like). See Brief for Political Science Professors as Amici
Curiae 28. Gerrymanders have thus become ever more
extreme and durable, insulating officeholders against all
but the most titanic shifts in the political tides. The 2010
redistricting cycle produced some of the worst partisan
gerrymanders on record. Id., at 3. The technology will
only get better, so the 2020 cycle will only get worse.
14 GILL v. WHITFORD
KAGAN, J., concurring
Courts have a critical role to play in curbing partisan
gerrymandering. Over fifty years ago, we committed to
providing judicial review in the redistricting arena, be­
cause we understood that “a denial of constitutionally
protected rights demands judicial protection.” Reynolds,
377 U.S., at 566. Indeed, the need for judicial review is at
its most urgent in these cases. For here, politicians’ incen­
tives conflict with voters’ interests, leaving citizens with­
out any political remedy for their constitutional harms. Of
course, their dire need provides no warrant for courts to
disregard Article III. Because of the way this suit was
litigated, I agree that the plaintiffs have so far failed to
establish their standing to sue, and I fully concur in the
Court’s opinion. But of one thing we may unfortunately be
sure. Courts—and in particular this Court—will again be
called on to redress extreme partisan gerrymanders. I am
hopeful we will then step up to our responsibility to vindi­
cate the Constitution against a contrary law.
Cite as: 585 U. S. ____ (2018) 1
Opinion of THOMAS, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–1161
_________________
BEVERLY R. GILL, ET AL., APPELLANTS v.
WILLIAM WHITFORD, ET AL.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF WISCONSIN
[June 18, 2018]
JUSTICE THOMAS, with whom JUSTICE GORSUCH joins,
concurring in part and concurring in the judgment.
I join Parts I and II of the Court’s opinion because I
agree that the plaintiffs have failed to prove Article III
standing. I do not join Part III, which gives the plaintiffs
another chance to prove their standing on remand. When
a plaintiff lacks standing, our ordinary practice is to re-
mand the case with instructions to dismiss for lack of
jurisdiction. E.g., Lance v. Coffman, 549 U.S. 437, 442
(2007) (per curiam); DaimlerChrysler Corp. v. Cuno, 547
U.S. 332, 354 (2006); United States v. Hays, 515 U.S. 737,
747 (1995). The Court departs from our usual practice
because this is supposedly “not the usual case.” Ante, at
21. But there is nothing unusual about it. As the Court
explains, the plaintiffs’ lack of standing follows from long-
established principles of law. See ante, at 13–17. After a
year and a half of litigation in the District Court, includ-
ing a 4-day trial, the plaintiffs had a more-than-ample
opportunity to prove their standing under these principles.
They failed to do so. Accordingly, I would have remanded
this case with instructions to dismiss.