[ Stevens ]
[ Scalia ]
CATHY COX, GEORGIA SECRETARY OF STATE v. SARA LARIOS et al.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
No. 031413. Decided June 30, 2004
Justice Scalia, dissenting.
When reviewing States
redistricting of their own legislative boundaries, we have been
appropriately deferential. See Mahan v. Howell,
410 U.S. 315, 327
(1973). A series of our cases established the principle that
minor deviations among districtsdeviations of
less than 10%are
The state officials who drafted Georgias redistricting plan believed the answer to that question was no, reading our cases to establish a 10% safe harbor with which they meticulously complied. The court below disagreed. No party here contends that, beyond grand generalities in cases such as Reynolds v. Sims, 377 U.S. 533, 577 (1964), this Court has addressed the question. The opinion below is consistent with others to have addressed the issue; there is no obvious conflict among the lower courts. This is not a petition for certiorari, however, but an appeal, and we should not summarily affirm unless it is clear that the disposition of this case is correct.
In my view, that is not clear. A substantial case can be made that Georgias redistricting plan did comply with the Constitution. Appellees do not contend that the population deviationsall less than 5% from the meanwere based on race or some other suspect classification. They claim only impermissible political biasthat state legislators tried to improve the electoral chances of Democrats over Republicans by underpopulating inner-city and rural districts and by selectively protecting incumbents, while ignoring traditional redistricting criteria. The District Court agreed. See App. to Juris. Statement 8a25a.
The problem with this analysis is that it assumes politics as usual is not itself a traditional redistricting criterion. In the recent decision in Vieth v. Jubelirer, 541 U.S. ___ (2004), all but one of the Justices agreed that it is a traditional criterion, and a constitutional one, so long as it does not go too far. See id., at ___ (plurality opinion) (slip op., at 1617); id., at ___ (Kennedy, J., concurring in judgment) (slip op., at 2); id., at ___ (Souter, J., dissenting) (slip op., at 2); id., at ___ (Breyer, J., dissenting) (slip op., at 1). It is not obvious to me that a legislature goes too far when it stays within the 10% disparity in population our cases allow. To say that it does is to invite allegations of political motivation whenever there is population disparity, and thus to destroy the 10% safe harbor our cases provide. Ferreting out political motives in minute population deviations seems to me more likely to encourage politically motivated litigation than to vindicate political rights.
I would set the case for argument.