Order Code RS22479
Updated February 26, 2008
Congressional Redistricting: A Legal Analysis
of the Supreme Court Ruling in
League of United Latin American Citizens
(LULAC) v. Perry
L. Paige Whitaker
Legislative Attorney
American Law Division
Summary
In a highly splintered, complex decision, the U.S. Supreme Court in League of
United Latin American Citizens (LULAC) v. Perry largely upheld a Texas congressional
redistricting plan that was drawn mid-decade against claims of unconstitutional partisan
gerrymandering. The Court invalidated one Texas congressional district, District 23,
finding that it diluted the voting power of Latinos in violation of Section 2 of the Voting
Rights Act. While not ruling out the possibility of a claim of partisan gerrymandering
being within the scope of judicial review, a majority of the Court in this case was unable
to find a “reliable” standard for making such a determination. In the 110th Congress,
H.R. 543, the “Fairness and Independence in Redistricting Act of 2007,” (Representative
Tanner); H.R. 2248, the “Redistricting Reform Act of 2007,” (Representative Lofgren);
and S. 2342, the “Fairness and Independence in Redistricting Act of 2007,” (Senator
Johnson), would among other things, prohibit states from carrying out more than one
congressional redistricting after a decennial census and apportionment, unless a court
required the state to conduct subsequent redistricting to comply with the Constitution
or to enforce the Voting Rights Act of 1965, and would require states to conduct
redistricting through the use of independent commissions.
Background
Following the 2000 census, Texas was apportioned two additional congressional
seats. Subsequently, however, the state legislature was unable to enact a redistricting
map, resulting in litigation and, ultimately, imposition of a court-ordered congressional
redistricting plan.1 The 2002 election was held under the court-ordered plan, resulting in
1 See Balderas v. Texas, Civ. Action No. 6:01CV158 (ED Tex., Nov. 14, 2001) (per curiam),
(continued...)

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a Democratic majority in the Texas congressional delegation. In October 2003, after the
Republican party gained control of the Texas State House of Representatives, and thus,
both houses of the legislature, it enacted a new congressional redistricting map with the
goal “to increase [Republican] representation in the congressional delegation.”2 LULAC
and others challenged the new plan in court, alleging various statutory and constitutional
violations. The district court entered judgment against them on all claims,3 and they
appealed to the U.S. Supreme Court. As the Court had just issued its decision in Vieth
v. Jubelirer,4 it vacated the district court decision and remanded in light of its holding in
Vieth. On remand, the district court again ruled against the appellants, finding that the
scope of its consideration was limited to questions of political gerrymandering.5 In their
appeal to the Supreme Court, appellants argued that the new redistricting plan should be
invalidated as an unconstitutional partisan gerrymander.
Supreme Court Ruling
League of United Latin American Citizens (LULAC) v. Perry was a consolidation of
four appeals before the U.S. Supreme Court.6 In this ruling, the Supreme Court’s nine
Justices filed six different opinions, each with subparts. Many issues were raised by the
appellants in this case, but the decision primarily addressed two topics: (1) the
constitutionality of partisan gerrymandering and (2) whether the Texas redistricting plan
violated Section 2 of the Voting Rights Act.
Constitutionality of Partisan Gerrymandering. Appellants in LULAC
challenged the 2003 mid-decennial Texas redistricting plan on the grounds that it was an
unconstitutional political gerrymander motivated by partisan objectives, in violation of
equal protection and First Amendment guarantees under the Constitution. They
maintained that the plan served no legitimate public purpose and burdened one group
because of its political opinions and affiliation. Appellants urged the Court to adopt a rule
or presumption of invalidity when a mid-decade redistricting plan is enacted solely for
partisan purposes, thereby alleviating the need for courts to inquire about (or for parties
to prove) the discriminatory effects of partisan gerrymandering.7
1 (...continued)
summarily aff’d, 536 U.S. 919 (2002).
2 See League of United Latin American Citizens (LULAC) v. Perry, 126 S. Ct. 2594, 2606
(2006)(plurality opinion)(quoting Session v. Perry, 298 F. Supp. 2d 451, 471 (2004)(per curiam)).
3 Session v. Perry, 298 F. Supp. 2d 451 (2004)(per curiam).
4 541 U.S. 267 (2004). The Vieth Court ruled that a constitutional equal protection challenge to
a political gerrymander may be justiciable (i.e., within the scope of judicial review), but a
majority of the Court was unable to agree on a standard to apply in making such a determination.
See id. at 127-37 (plurality opinion) and 161-62 (Powell, J., concurring in part, dissenting in
part).
5 Henderson v. Perry, 399 F. Supp. 2d 756 (2005).
6 LULAC v. Perry, No. 05-204; Travis County, Texas v. Perry, No. 05-254; Jackson v. Perry, No.
05-276; and GI Forum of Texas v. Perry, No. 05-439.
7 LULAC v. Perry, 126 S. Ct. 2594, 2609 (2006)(plurality opinion).

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In evaluating appellants’ arguments, the Court first noted that there were indications
that “partisan motives did not dictate the plan in its entirety.”8 The Court further
determined that ascertaining the legality of an act arising from “mixed motives” can be
complicated, and indeed, “hazardous,” particularly when the actor is a legislature and the
act is a series of choices. Hence, the Court expressed skepticism of a claim seeking to
invalidate a statute based on a legislature’s unlawful motive without reference to its
content. Notwithstanding its skepticism, the Court also found that in order for a claim of
unconstitutional partisan gerrymandering to prevail, it must show a burden on
complainants’ representational rights, “as measured by a reliable standard.” Indeed, the
Court noted, for this exact reason, a majority of the Vieth Court had rejected a test
“markedly similar” to the one proposed by the appellants.9
In regard to appellants’ reliance on the fact that the redistricting plan was enacted
mid-decade, the Court announced that the Constitution and the Court’s case law “indicate
that there is nothing inherently suspect about a legislature’s decision to replace, mid-
decade, a court-ordered plan with one of its own.” Even if there were, the Court
commented, “the fact of mid-decade redistricting alone is not sure indication of unlawful
political gerrymanders.”10 The Court also observed that the “sole-intent standard” is no
more compelling when bolstered by the fact that the redistricting was enacted mid-
decade.11
Appellants proffered a second political gerrymandering theory: that mid-decade
redistricting for exclusively partisan purposes violates the Constitution’s one-person, one-
vote requirement. Citing landmark Supreme Court holdings in Karcher v. Daggett12 and
Kirkpatrick v. Preisler,13 they observed that population variances among congressional
districts are acceptable only if they are “unavoidable,” despite good faith efforts to attain
complete equality “or for which justification is shown.” From that premise, appellants
maintained that due to population shifts in Texas since the 2000 census, the 2003
redistricting, which still relied on the 2000 census numbers, created unlawful population
variances among the districts. To distinguish the Texas 2003 redistricting plan’s reliance
on three-year-old census numbers from other, more typical redistricting plans’ reliance
on three-year-old (or older) census numbers, appellants again highlighted the “voluntary,
mid-decade” nature of the redistricting and its “partisan motivation.” Leaving appellants’
observations regarding established jurisprudence on the acceptability of population
variances among districts unchallenged, the Court found that appellants’ reasoning merely
restated their primary argument that it was impermissible for the Texas legislature to
redraw the districting map, mid-decade, for solely partisan purposes. Hence, for the same
8 Id. The Court further noted, “The legislature does seem to have decided to redistrict with the
sole purpose of achieving a Republican congressional majority, but partisan aims did not guide
every line it drew.” Id.
9 Id. at 2610 (citing Vieth v. Jubelirer, 541 U.S. 267 (2003)).
10 Id.
11 Id.
12 462 U.S. 725, 730 (1983).
13 394 U.S. 526, 531 (1969).

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reasons it had originally rejected this argument, the Court once again found it
unpersuasive.14 In its concluding statement, the Court announced:
In sum, we disagree with appellants’ view that a legislature’s decision to override a
valid, court-drawn plan mid-decade is sufficiently suspect to give shape to a reliable
standard for identifying unconstitutional political gerrymanders. We conclude that
appellants have established no legally impermissible use of political classifications.
For this reason, they state no claim on which relief may be granted for their statewide
challenge.15
The LULAC v. Perry ruling appears to leave earlier Court precedent basically
unchanged. In its 2004 decision Vieth v. Jubelirer,16 a plurality of four justices would
have held that claims of unconstitutional partisan gerrymandering are not justiciable,17
thereby overruling the Court’s 1986 holding in Davis v. Bandemer.18 Another plurality
of four justices would have held such claims to be justiciable, although they could not
agree upon a standard that courts could use in order to make such determinations.19 The
deciding vote in that case, Justice Kennedy, held that the claims presented were not
justiciable, but left open the possibility that such standards might exist.20
Similar to its decision in Vieth, the LULAC Court was also divided on the issue of
whether partisan gerrymandering claims are beyond the scope of judicial review. In
LULAC, the same four justices would have held that claims of unconstitutional partisan
gerrymandering are justiciable, while not agreeing upon a standard for adjudicating such
claims.21 Of the four justices in Vieth, who would have held that such claims are not
justiciable, the two who remain on the Court maintained that same position in LULAC.22
The two newest members of the Court, Chief Justice Roberts and Justice Alito, however,
generally agreed with Justice Kennedy’s position, leaving open the possibility of a
standard for adjudicating unconstitutional partisan gerrymandering claims.23 Hence, in
LULAC, the Court was unable to find a “reliable measure” of what constitutes an
unconstitutional partisan gerrymandering, thereby finding that the claims presented were
14 LULAC v. Perry, 126 S. Ct. 2594, 2612 (2006)(plurality opinion).
15 Id.
16 541 U.S. 267 (2004).
17 See id. at 271-306 (plurality opinion).
18 478 U.S. 109 (1986)(holding that political gerrymandering cases are properly justiciable under
the Equal Protection Clause, but that a threshold showing of discriminatory vote dilution is
required for a prima facie case of an equal protection violation).
19 See Vieth v. Jubelirer, 541 U.S. 267, 317 (2004)(Stevens, J., dissenting).
20 See id. at 306-317 (Kennedy, J., concurring).
21 See LULAC v. Perry, 126 S. Ct. 2594, 2626-2647 (2006)(Stevens, J., dissenting in part,
concurring in part).
22 See id. at 2663-2669 (Scalia, J., dissenting).
23 See id. at 2652-2663 (Roberts, C.J., concurring in part, concurring in the judgment in part,
dissenting in part).

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not justiciable.24 Notably, however, a majority of the Court declined to conclude that
standards a court could use to evaluate such claims do not exist. In the aftermath of
LULAC, it appears theoretically possible for a claim of unconstitutional partisan
gerrymandering to prevail. The critical standard that a court could use to ascertain such
a determination and grant relief, however, remains unresolved.
Compliance with the Voting Rights Act. Appellants in LULAC argued that
changes to Texas’s congressional District 23 diluted the voting rights of Latinos who
remained in the district after the 2003 redistricting, causing the Latino share of the citizen
voting-age population to drop from 57.5% to 46%. Although the Supreme Court
acknowledged the district court’s finding that Latino voting strength was unquestionably
weakened, the question for the Court was whether it constituted vote dilution.
Engaging in a threshold analysis under the landmark 1986 decision, Thornburg v.
Gingles, the Court determined that appellants satisfied all three Gingles requirements; that
is, District 23 possessed the requisite cohesion among the Latino minority group, bloc
voting among the majority population, and a Latino citizenry that was “sufficiently large
and geographically compact to constitute a majority in a single-member district.”25
Nevertheless, the appellee argued that it met its Section 2 obligations by creating a new
District 25 as an “offsetting opportunity” district. Noting that it has rejected the premise
that a state can compensate for the “less-than-equal” opportunity of some individuals by
providing greater opportunity to others, the Court rejected the appellee’s argument.26
Next, as directed by the text of the Voting Rights Act, the Court turned to consider
the “totality of the circumstances” to determine whether members of the Latino
population have less opportunity than other members of the electorate to participate in the
political process and to elect candidates of their choice.27 The Court determined that
changes to District 23 stymied the progress of a racial group that had historically been
subject to substantial voting-related discrimination and was increasingly politically active
and cohesive. In effect, the Court noted, “the State took away the Latinos’ opportunity
because Latinos were about to exercise it.”28 The Court further announced that the state
“chose to break apart a Latino opportunity district to protect the incumbent congressman
from the growing dissatisfaction of the cohesive and politically active Latino community
in the district.” Then, purporting to compensate for the injury, the state created an entirely
new district, combining two groups of Latinos, geographically far apart and representing
differing communities of interest. Even assuming that the redrawing of District 23 was
close to proportional representation, the Court held that “its troubling blend of politics and
race — and the resulting vote dilution of a group that was beginning to achieve §2’s goal
24 See id. at 2626 (plurality opinion).
25 Id. at 2613 (quoting Thornburg v. Gingles, 478 U.S. 30, 50 (1986)).
26 Id. at 2616 (citing Shaw v. Hunt (Shaw II), 517 U.S. 899, 917 (1996)(holding that vote dilution
injuries are not remedied by creating a safe majority-black district elsewhere in the state)).
27 Id. at 2620 (citing Section 2 of the Voting Rights Act, codified at 42 U.S.C. § 1973(b)).
28 Id. at 2622.

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of overcoming prior electoral discrimination — cannot be sustained.”29 Hence, the
Supreme Court ruled that District 23 violated Section 2 of the Voting Rights Act because
it diluted the voting power of Latinos. This portion of the opinion was written by Justice
Kennedy and joined by Justices Souter, Ginsburg, Stevens, and Breyer.
Consequences
After rejecting the statewide challenge to Texas’s redistricting as an unconstitutional
partisan gerrymander, and holding that congressional District 23 violates Section 2 of the
Voting Rights Act, the Supreme Court in LULAC affirmed the district court decision in
part, reversed in part, vacated in part, and remanded the case for further proceedings.30
In accordance with the Supreme Court’s ruling, on June 29, 2006, a federal district court
in Texas ordered parties in the case to submit remedial proposals, including supporting
maps and briefs.31 The court heard oral argument on August 3 and adopted a new plan
on August 4 redrawing Texas congressional districts 15, 21, 23, 25, and 28. The court
ordered that special elections in the redrawn districts for the 110th Congress be held in
conjunction with the general election, which occurred on November 7, 2006.32
As a result of the Court’s ruling, commentators have observed other states may
dispense with the tradition of redrawing congressional districts only once per decade
following the decennial census, and instead, redistrict following a change in political
control of the state government. It has also been noted, however, that there does not
appear to be any urgency on the part of state legislatures to do so.33
Selected Legislation in the 110th Congress
Legislation introduced during the 110th Congress would limit a state from enacting
a congressional redistricting plan more than once following an apportionment of
Representatives to the U.S. House. For example, H.R. 543, the “Fairness and
Independence in Redistricting Act of 2007,” (Representative Tanner); H.R. 2248, the
“Redistricting Reform Act of 2007,” (Representative Lofgren); and S. 2342, the “Fairness
and Independence in Redistricting Act of 2007,” (Senator Johnson), contain provisions
that would prohibit states from carrying out more than one congressional redistricting
after a decennial census and apportionment, unless a court required the state to conduct
subsequent redistricting to comply with the Constitution or to enforce the Voting Rights
Act of 1965, and that would require states to conduct redistricting through the use of
independent commissions.
29 Id. at 2623.
30 Id.
31 LULAC v. Perry, Civ. Action No. 2:03-CV-354 (ED Tex., June 29, 2006).
32 LULAC v. Perry, Civ. Action No. 2:03-CV-354 (ED Tex., August 4, 2006).
33 See, e.g., Linda Greenhouse, Justices Uphold Most Remapping in Texas by G.O.P., N.Y.
TIMES, June 29, 2006.

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