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Whitford v. Gill

United States District Court, W.D. Wisconsin

November 21, 2016

WILLIAM WHITFORD, ROGER ANCLAIM, EMILY BUNTING, MARY LUNNE DONOHUE, HELEN HARRIS, WAYNE JENSEN, WENDY SUE JOHNSON, JANET MITCHELL, ALLISON SEATON, JAMES SEATON, JEROME WALLACE AND DONALD WINTER, Plaintiffs,
v.
BEVERLY R. GILL, JULIE M. GLANCEY, ANN S. JACOBS, STEVE KING, DON MILLIS, and MARK L. THOMSEN, Defendants.[1]

          Before RIPPLE, Circuit Judge, and CRABB and GRIESBACH, District Judges.

          OPINION AND ORDER

          KENNETH F. RIPPLE, Circuit Judge

         TABLE OF CONTENTS

         I. Background ................................................................................................................. 3

         A. Reapportionment in Wisconsin ......................................................................... 3

         B. Drafting of Act 43 ................................................................................................. 7

         C. Prior Court Challenges to Act 43 ..................................................................... 16

         II. Procedural History .................................................................................................. 16

         A. Allegations of the Complaint ........................................................................... 16

         B. Motion to Dismiss .............................................................................................. 19

         C. Motion for Summary Judgment ....................................................................... 20

         D. Witnesses Testifying at Trial ............................................................................ 21

         E. Post-Trial Briefing .............................................................................................. 28

         III. The Legal Landscape ............................................................................................... 29

         A. The Foundational Case Law ............................................................................. 31

         B. Present Supreme Court Precedent ................................................................... 34

         IV. Elements of the Cause of Action ............................................................................ 55

         A. Discriminatory Intent or Purpose .................................................................... 56

         B. Discriminatory Effect of Act 43 ........................................................................ 74

         V. Justification .............................................................................................................. 90

         VI. Standing .................................................................................................................... 111

         VII. Order ......................................................................................................................... 115

         A. Remedy ............................................................................................................... 115

         B. Evidentiary Matters .......................................................................................... 116

         Appendices

         The plaintiffs have brought this action alleging that Act 43, the redistricting plan enacted by the Wisconsin Legislature in 2011, constitutes an unconstitutional partisan gerrymander. Specifically, they maintain that the Republican-controlled legislature drafted and enacted a redistricting plan that systematically dilutes the voting strength of Democratic voters statewide. We find that Act 43 was intended to burden the representational rights of Democratic voters throughout the decennial period by impeding their ability to translate their votes into legislative seats. Moreover, as demonstrated by the results of the 2012 and 2014 elections, among other evidence, we conclude that Act 43 has had its intended effect.

         Finally, we find that the discriminatory effect is not explained by the political geography of Wisconsin nor is it justified by a legitimate state interest. Consequently, Act 43 constitutes an unconstitutional political gerrymander. This opinion constitutes our findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a)(1).

         I

         BACKGROUND[2]

         We begin our consideration of the plaintiffs' claims by examining Wisconsin's statutory requirements for redistricting as well as its recent redistricting history.

         A. Reapportionment in Wisconsin

         1. The State's constitutional and statutory framework

         Reapportionment of state legislative districts is a responsibility constitutionally vested in the state government. See, e.g., Growe v. Emison, 507 U.S. 25, 34 (1993) (citing U.S. Const. art I., § 2); Chapman v. Meier, 420 U.S. 1, 27 (1975). Although some states have chosen to avoid the problem of partisan gerrymandering by vesting this power in a neutral body designed specifically to perform that delicate function, see Arizona State Legislature v. Arizona Indep. Redistricting Comm'n, 135 S.Ct. 2652, 2661-62 & n.6 (2015), the people of Wisconsin have so far chosen to rely on its legislature to reapportion its districts after the decennial census. They have vested responsibility in the bicameral legislature composed of the Wisconsin State Senate and the Wisconsin State Assembly. Wis. Const. art. IV, §§ 1, 3. According to Wisconsin law, “[t]he state is divided into 33 senate districts, each composed of 3 assembly districts. Each senate district shall be entitled to elect one member of the senate. Each assembly district shall be entitled to elect one representative to the assembly.” Wis.Stat. § 4.001.

         The Wisconsin Constitution directs the Wisconsin legislature, “[a]t its first session after each enumeration made by the authority of the United States, ” to “apportion and district anew the members of the senate and assembly, according to the number of inhabitants.” Wis. Const. art. IV, § 3. The Wisconsin Constitution also imposes specific requirements for reapportionment plans. Assembly districts are “to be bounded by county, precinct, town or ward lines, to consist of contiguous territory and be in as compact form as practicable.” Id. § 4. With respect to political subdivisions, a prior federal district court observed that, “[a]lthough avoiding the division of counties is no longer an inviolable principle, respect for the prerogatives of the Wisconsin Constitution dictate that wards and municipalities be kept whole where possible.” Baumgart v. Wendelberger, Nos. 01-C-0121 & 02-C-0366, 2002 WL 34127471, at *3 (E.D. Wis. May 30, 2002), amended by 2002 WL 34127473 (E.D. Wis. July 11, 2002). The Wisconsin Constitution further requires that “no assembly district shall be divided in the formation of a senate district.” Wis. Const. art. IV, § 5.

         In addition to the state constitutional requirements, the Wisconsin legislature must comply with federal law when redistricting. In particular, state legislatures must ensure that districts are approximately equal in population, so that they do not violate the “one-person, one-vote” principle embedded in the Equal Protection Clause of the Fourteenth Amendment. See Reynolds v. Sims, 377 U.S. 533, 568 (1964) (“[T]he Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis.”); see also Brown v. Thomson, 462 U.S. 835, 842-43 (1983) (holding “that an apportionment plan with a maximum population deviation under 10%” is presumptively constitutional, while a population deviation larger than 10% must be justified by the state); Harris v. Arizona Indep. Redistricting Comm'n, 136 S.Ct. 1301, 1306-07 (2016) (same). Further, states also must comply with § 2 of the Voting Rights Act of 1965, which focuses on preserving the voting power of minority groups. 52 U.S.C. § 10301; see also Thornburg v. Gingles, 478 U.S. 30, 47 (1986).

         Redistricting laws in Wisconsin are enacted, in large measure, in the same manner as other legislation, specifically, by way of bills originating in either house of the legislature, see Wis. Const. art. IV, § 19. Tad Ottman, aide to the Senate Majority Leader, explained in some detail this legislative process:

[L]egislators will work either on their own or with drafters or with a small group of people to develop legislation. Usually it's developed among members of your own party, if not just the individual legislator. They create a proposal with the assistance of the Legislative Reference Bureau. At that point, the bill is often, but not always, circulated among other legislators to see if anybody else would want to sign on ….[3]
The bill is then circulated. At some point it is introduced. … And then once they are introduced, they are assigned to a committee. The committee chairman or chairwoman can choose to hold a public hearing on that piece of legislation. Most of the time a public hearing is held. … And then that legislation is forwarded to the full body, either the Senate or the Assembly, for debate and then it is passed over to the other House where a similar process occurs.[4]

         A bill must then “be presented to the governor, ” who can sign or veto the bill. Wis. Const. art. V, § 10.

         The caucus system plays a significant role in the legislative process.[5] Caucus meetings are held in the morning prior to the legislative session to vet legislation internally before a vote on the floor.[6] Professor William Whitford, a named plaintiff and retired professor of law from the University of Wisconsin, testified that important “debate and discussion, ” as well as the “vote[] that matters, ” occur within the caucus meetings.[7] “Once the party caucuses come to a majority result, the other members of the party are expected to follow the party line … .”[8] Thus, it is “extremely difficult” to pass legislation through a bipartisan coalition.[9]

         2. The modern history of reapportionment in Wisconsin

         In the wake of the 1980 census, the plan that had been enacted in 1972 could no longer satisfy the constitutional requirement of “one-person one-vote.” See Wis. State AFL-CIO v. Elections Bd., 543 F.Supp. 630, 631 (E.D. Wis. 1982). In response to these changes in population, a redistricting plan was drafted and enacted by the Wisconsin legislature, which had a Democratic majority, but it was vetoed by the Republican governor. Consequently, a federal district court was asked to devise a remedy. See Id. at 632-33. Upon reviewing several plans submitted by legislators and interest groups, the court “reluctantly concluded” that it could “be more faithful to the goals of reapportionment” by drafting its own plan. Id. at 637. In doing so, the court focused on ensuring population equality, avoiding the dilution of racial minority voting strength, and keeping communities of interest together. Id. at 637-39. This “AFL-CIO Plan” remained in effect for one election in 1982. As a result of that election, the Democratic Party held control of both houses of the Wisconsin legislature and also gained the governor's office.[10] The legislature passed, and the governor signed, a new apportionment plan that lasted for the rest of the decennial period. See 1983 Wis. Sess. Laws 633.

         Following the 1990 election, the Wisconsin government again was divided between two political parties. See Prosser v. Elections Bd., 793 F.Supp. 859, 862 (W.D. Wis. 1992). The Democratic Party controlled both houses of the Wisconsin legislature while the governor was a Republican. Id. “For that or other reasons, no bill to reapportion the legislature had been enacted into law” by January 1992, leading several Republican legislators to challenge the existing apportionment plan “as unconstitutional and violative of the Voting Rights Act.” Id. As a result, the federal court was asked to draft a new plan.

         In an attempt to play a more limited role in the redistricting process, the court “asked the parties at the outset whether they had any objection … to [the court's] selecting the best of the submitted plans rather than trying to create [its] own plan.” Id. at 865 (emphasis removed). Upon receiving these submissions, however, the court determined that the plans bore “the marks of their partisan origins.” Id. at 865. It therefore used parts of one Republican plan and one Democratic plan. The court plan preserved the strengths of the partisan plans, “primarily population equality and contiguity and compactness, ” while “avoid[ing] their weaknesses.” Id. at 870. The plan remained in effect through the 2000 election.

         Following the 2000 census, a divided Wisconsin legislature again was unable to agree upon a redistricting plan. Arrington v. Elections Bd., 173 F.Supp.2d 856, 862 (E.D. Wis. 2001). In an ensuing law suit, the federal district court determined that “the existing Wisconsin Assembly and Senate districts, ” which had not been redrawn since 1992, were “violative of the ‘one person, one vote' standard.” Baumgart, 2002 WL 34127471, at *1. A new plan was therefore necessary. The court considered sixteen plans that had been submitted by legislators and other interest groups, but “found various unredeemable flaws” in all of them. Id. at *6. The court therefore drew a plan “in the most neutral way it could conceive-by taking the 1992 reapportionment plan as a template and adjusting it for population deviations.” Id. at *7. In making these changes, the court attempted to “maintain[] municipal boundaries and unit[e] communities of interest.” Id. The “Baumgart Plan” was in effect from 2002 until 2010.

         B. Drafting of Act 43

         In 2010, for the first time in over forty years, the voters of Wisconsin elected a Republican majority in the Assembly, a Republican majority in the Senate, and a Republican Governor. This uniformity in control led the Republican leadership to conclude that a legislatively enacted redistricting plan was possible.

         In January 2011, Scott Fitzgerald, Wisconsin Senate Majority Leader, and Jeff Fitzgerald, Speaker of the Wisconsin Assembly, retained attorney Eric McLeod and the law firm of Michael Best & Friedrich, LLP, to assist with the reapportionment of the state legislative districts.[11] The firm supervised the work of Tad Ottman, staff member to Senate Majority Leader Fitzgerald; Adam Foltz, staff member to Speaker Fitzgerald; and Joseph Handrick, a consultant with the law firm Reinhart Boerner Van Deuren s.c., in planning, drafting, and negotiating the new districting plan. Ottman, Foltz, and later Handrick, worked in a room located in the offices of Michael Best & Friedrich, which they referred to as the “map room.”[12]

         Ottman, Foltz, and Handrick also received assistance from Professor Ronald Keith Gaddie, a professor of political science at the University of Oklahoma. Michael Best & Friedrich had retained Professor Gaddie “as an independent advisor on the appropriate racial and/or political make-up of legislative and congressional districts in Wisconsin.”[13] Professor Gaddie described his job as “devis[ing] measures and consult[ing] … about measures” of partisanship, compactness, “the integrity of counties, the integrity of city boundaries, the so-called good government principles of redistricting.”[14] “Where [he] … spent most of [his] time was trying to disentangle the performance of the majority/minority districts in Milwaukee County.”[15]

         A “significant part” of his work was “building a regression model to be able to test the partisan makeup and performance of districts as they might be configured in different ways.”[16] As explained by one of the plaintiffs' experts, Professor Kenneth Mayer, “[r]egression is a technique where we can seek to explain a dependent variable, the variable that we're trying to account for. … [W]e attempt to explain the values that a dependent variable take[s] with what are called independent variables or underlying causal variables.”[17] In this instance, Professor Gaddie's dependent variable was the baseline partisanship of a unit of geography, which then could be aggregated into different configurations of Assembly districts. In this way, Professor Gaddie was able to assess the partisanship of the Assembly maps that the drafters passed on to him for analysis.[18] Professor Mayer testified that “the political science literature is essentially unanimous” that the approach taken by Professor Gaddie is “the appropriate method, ”[19] and Professor Mayer used the same methodology to construct his Demonstration Plan.[20]

         Ottman, Foltz, and Handrick began drafting the map that would become Act 43 in April 2011, after they received census data from the Legislative Technology Services Bureau (“LTSB”).[21] The LTSB also had provided them with computers loaded with the redistricting software, autoBound.[22] Ottman described in detail how the software was used:

[Y]ou would open up a plan that you'd been working on or label a new plan and assign it the Assembly district that you wanted to work with and then you could also pick a color that you wanted that Assembly district to be. It's sort of like a color-by-number exercise. …
You also determine what other layers that you want to look at on the screen. There were a number of different overlays that you have, anywhere from existing Senate and Assembly districts, … count[y] boundaries, municipal boundaries, ward boundaries all the way down to census block boundaries. As a practical matter what you tried to do is you would zoom in the region of your screen to the area that you're looking at to the smallest amount that you could see and then have kind of the fewest layers displayed that you would need because the more information that you were requiring it to display slows down the computer speed a lot and makes it really slow to render.
And then what you would do is there were a couple different ways that you could add population to the district.[23]

         Ottman further explained that, in more populated areas, the drafters worked more at the ward level: “So you would have the wards displayed and you would literally draw a circle, click on it, and it would assign it to the map and fill it in.”[24] “In other parts of the state … you might do that at the county level because it's so sparsely populated so you'd grab three or four counties at [a] time.”[25]

         When the drafters would increase the area size of the districts that they were drawing, autoBound provided demographic information for the area that the drafter had included, such as the number of people in the district, the deviation from the ideal population, voting-age population, and different minority group populations.[26] It also allowed the user to include “customized … demographic data.”[27]

         One piece of “customized demographic data” employed by the drafters was a composite partisan score. From the time that Ottman, Foltz, and Handrick received the census data from the LTSB, they worked to develop a composite partisan score that accurately reflected the political make-up of the population units.[28] Having this measure was necessary so that, when they aggregated those units into new districts, they could assess the partisan make-up of the new district they had drawn. On April 19, 2011, they developed a composite of “all statewide races from [20]04 to 2010” that “seem[ed] to work well.”[29] They sent this composite measure to Professor Gaddie, who tested it against his regression model. Professor Gaddie confirmed to Handrick that “the partisanship proxy you are using (all races) is an almost perfect proxy for the open seat vote, and the best proxy you'll come up with.”[30] Once Professor Gaddie confirmed the usefulness of their composite measure, Ottman, Foltz, and Handrick could “assess the partisan impact of the map[s] that [they] drew.”[31]

         Although Ottman, Foltz, and Handrick worked in the same room at Michael Best & Friedrich, they worked independently on their own maps. They drew several statewide maps, and even more regional maps from which the legislative leadership eventually would choose. As they drew the maps, they would ensure that the districts were “close-to-ideal population.”[32] They did an “eyeball test” for “compactness and contiguousness.”[33] They “looked at … what the core of the existing district was compared to the new district, ” “looked at municipalities that were split, ” whether the new district had changed Senate districts, and “where incumbents lived.”[34]

         The drafters were attentive to traditional districting criteria like population equality, compactness, and municipal splits throughout the drafting process. When the drafters had created a statewide map with which they were satisfied, they would export the district-by-district partisanship scores from autoBound into a spreadsheet for that “finalized” “statewide” plan.[35]

         The drafters used their composite score to evaluate the statewide maps that they had drawn based on the level of partisan advantage that they provided to Republicans. In many instances, the names of the maps reflected the level of partisan advantage achieved by the districting plan; for instance, there are maps labeled “Assertive” and “Aggressive.”[36] Foltz testified that “aggressive” in this context meant “probably that [the map] was a more aggressive map with regard to GOP leaning.”[37]

         The drafters created spreadsheets which collected the partisan scores, by district, for each of the statewide map alternatives. Each spreadsheet included a corresponding table comparing the partisan performance of the draft plan to the prior map drawn by the Baumgart court, which they called the “Current Map.” These performance comparisons were made on the following criteria: “Safe” Republican seats, “Lean” Republican seats, “Swing” seats, “Safe” Democratic seats, and “Lean” Democratic seats.[38]

         The process of drafting and evaluating these alternative district maps spanned several months. In early April 2011, the drafters produced a document comparing the partisan performance of the Current Map to two early draft maps: Joe's Basemap Basic and Joe's Basemap Assertive.[39] Under the Current Map, the drafters anticipated that the Republicans would win 49 Assembly seats.[40] This number increased to 52 under the Joe's Basemap Basic map and to 56 under the Joe's Basemap Assertive map.[41] The number of safe and leaning Republican seats increased from 40 under the Current Map to 45 under the Joe's Basemap Basic map and 49 under the Joe's Basemap Assertive map; the number of swing seats decreased from 19 to 14 to 12.[42] The number of safe and leaning Democratic seats, however, remained roughly the same under all three maps, hovering between 38 and 40.[43]

         The drafters prepared and evaluated the partisan performance of at least another six statewide alternative maps.[44] Each of these maps improved upon the anticipated pro-Republican advantage generated in the initial two draft plans. The total number of safe and leaning Republican seats now ranged between 51 and 54, and the number of swing seats was decreased to between 6 and 11.[45] The number of safe and leaning Democratic seats again remained about the same under each draft map, ranging between 37 and 39.[46]

         The drafters sent their completed draft maps to Professor Gaddie for further analysis. For each map, Professor Gaddie created an “S” curve-a “visual aide[] to demonstrate the partisan structure of Wisconsin politics.”[47] These “S” curves show how each map would operate within an array of electoral outcomes.[48]

         The “S” curves give a visual depiction of how each party's vote share (on the x axis), ranging from 40% to 60%, relates to the number of Assembly seats that party likely will secure (on the y axis). Democratic seats are depicted by shades of blue, and Republican seats by shades of red.[49] To produce the “S” curves, Professor Gaddie first used his regression analysis to calculate the expected partisan vote shares for each new district.[50] He then shifted the vote share of each district ten points in either direction, from 40% to 60%, and assigned a color to districts that “tend[ed]” towards, or were “safe” seats, for that party.[51] The “S” curves-at least some of which were printed in large format and kept in the map room-allowed a non-statistician, by mere visual inspection, to assess the partisan performance of a particular map under all likely electoral scenarios. On one occasion, Senator Fitzgerald came to the map room, and Professor Gaddie showed him one of the large printouts of the “S” curves and “basically explain[ed] how to interpret” them.[52]

         Not long after Professor Gaddie had performed his analyses, the Republican legislative leadership contacted the drafters and indicated that they wanted to be prepared to act on a redistricting plan. Over several days in early June, the drafters presented a selection of regional maps drawn from their statewide drafts, approximately three to four per region, to the Republican leadership. Along with these regional alternatives, the leadership “saw the partisan scores for the maps that [the drafters] presented to them in those alternatives.”[53] Foltz testified during his deposition that, although he could not recall a particular example, he was sure that he was asked by the leadership about the partisan performance of the various regional options.[54]

         Following this meeting, the drafters amalgamated the regional alternatives chosen by the leadership. Foltz testified that “the draft map called team map emerged as a result of the … leadership's choices at those meetings.”[55] Under the Team Map, which was also referred to as the “Final Map, ”[56] the Republicans could expect to win 59 Assembly seats, with 38 safe Republican seats, 14 leaning Republican, 10 swing, 4 leaning Democratic, and 33 safe Democratic seats.[57] In a document bearing the heading “Tale of the Tape, ”[58] the drafters, among other things, compared the partisan performance of the Team Map directly to the Current Map on each of these criteria.[59]They highlighted specifically that under the Current Map, 49 seats are “50% or better” for Republicans, but under the Team Map, “59 Assembly seats are 50% or better.”[60]

         The Team Map underwent even more intense partisan scrutiny in a document identified as “summary.xlsx.”[61] The drafters divided the new Team Map districts into six categories of partisan performance, listing beside each district its “new incumbent” and its Republican vote share under the Current Map and the Team Map.[62] The drafters considered five districts to be “Statistical Pick Up[s], ” meaning they were currently held by a Democratic incumbent but likely to become Republican; they grouped fourteen districts under the heading “GOP seats strengthened a lot”; they designated eleven districts “GOP seats strengthened a little”; they labeled three districts as “GOP seats weakened a little”; they considered another three GOP districts “likely lost”; and, finally, they identified four districts where the Democrats were “weakened.”[63] The drafters also listed the twenty Republican Assembly members who, under the Team Map, could be considered “GOP Donors to the Team”: “Incumbents with numbers above 55% that donate[d] to the team.”[64] These representatives stood in contrast to “GOP non-donors, ” who were Republican incumbents with “over 55% who d[id] not donate points.”[65]

         The Team Map was then sent to Professor Gaddie, who conducted an “S” curve analysis. The Team Map demonstrated that Republicans would maintain a majority under any likely voting scenario; indeed, they would maintain a 54 seat majority while garnering only 48% of the statewide vote. The Democrats, by contrast, would need 54% of the statewide vote to capture a majority.[66]

         Once the map had been finalized, Foltz presented each Republican member of the Assembly with information on his or her new district. The memos prepared for the Assembly members informed them whether the district number had changed, whether adjustment to the district population was necessary based on the census numbers, and provided a “[c]omparison of [k]ey [r]aces” in the new district compared to the old.[67]Specifically, the memorandum detailed what percentage of the population in the old and new districts voted for Republican candidates in representative statewide and national elections held since 2004. This information also was provided in terms of raw votes. The memoranda did not provide the individual legislators with any information about contiguity, compactness, or core population.

         Ottman engaged in a similar process with Republican members of the State Senate.[68] For each meeting, he created a talking-points memo that included information about population, where changes in the district's population had occurred, and the geography of the new district.[69] These also contained information on how the re-configured district had voted in national and statewide elections.[70]

         Ottman also made a presentation to the Republican caucus. His notes for that meeting state: “The maps we pass will determine who's here 10 years from now, ” and “[w]e have an opportunity and an obligation to draw these maps that Republicans haven't had in decades.”[71]

         On July 11, 2011, the redistricting plan was introduced by the Committee on Senate Organization.[72] On July 13, 2011, a public hearing was held, during which Ottman and Foltz presented the plan and fielded questions.[73] The Senate and Assembly passed the bill on July 19, 2011, and July 20, 2011, respectively. The Governor signed the bill, and it was published as Wisconsin Act 43 on August 23, 2011.[74]

         C. Prior Court Challenges to Act 43

         Even before Act 43 was passed, two actions were brought challenging the plan on constitutional and statutory grounds, including under Section 2 of the Voting Rights Act. See Baldus v. Members of the Wis. Gov't Accountability Bd., 849 F.Supp.2d 840, 846-47 (E.D. Wis. 2012). The court consolidated the actions for decision and concluded that the plan did not violate the “one-person, one-vote” principle, nor did it violate the Equal Protection Clause by “disenfranchise[ing]” voters who were moved to a new Senate district and were unable to vote for their state senator for another two years. Id. at 849- 51, 852-53. However, the court did find that the plaintiffs were entitled to relief on their claim that Act 43 violated the Voting Rights Act by diluting the voting power of Latino voters in Milwaukee County, and it ordered the State to redraw these districts. Id. at 859. The remainder of Act 43, however, remained intact and governed the 2012 and 2014 Assembly elections.

         In 2012, the Republican Party received 48.6% of the two-party statewide vote share for Assembly candidates and won 60 of the 99 seats in the Wisconsin Assembly.[75]In 2014, the Republican Party received 52% of the two-party statewide vote share and won 63 assembly seats.[76]

         II

         PROCEDURAL HISTORY

         A.

         Allegations of the Complaint

         We now turn to the dispute before this court. Plaintiffs William Whitford, Roger Anclam, Emily Bunting, Mary Lynne Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, James Seaton, Allison Seaton, Jerome Wallace, and Don Winter are United States citizens registered to vote in Wisconsin. They reside in various counties and legislative districts throughout Wisconsin. All of them are “supporters of the Democratic party and of Democratic candidates and they almost always vote for Democratic candidates in Wisconsin elections.”[77] Defendants are Beverly R. Gill, Julie M. Glancey, Ann S. Jacobs, Steve King, Don Millis, and Mark L. Thomsen, each in his or her official capacity as a member of the Wisconsin Elections Commission.

         According to the plaintiffs, in drafting Act 43, the Republicans employed two gerrymandering techniques: “cracking”-“dividing a party's supporters among multiple districts so that they fall short of a majority in each one”-and “packing”- “concentrating one party's backers in a few districts that they win by overwhelming margins, ”[78] in order to dilute the votes of Democrats statewide. This “cracking and packing result[ed] in ‘wasted' votes: votes cast either for a losing candidate (in the case of cracking) or for a winning candidate but in excess of what he or she needs to prevail (in the case of packing).”[79] They therefore urge the court to adopt a new measure for assessing the discriminatory effect of political gerrymanders-the efficiency gap (or “EG”). “The efficiency gap is the difference between the parties' respective wasted votes in an election, divided by the total number of votes cast.”[80] When two parties waste votes at an identical rate, a plan's EG is equal to zero. An EG in favor of one party, however, means that the party wasted votes at a lower rate than the opposing party. It is in this sense that the EG arguably is a measure of efficiency: Because the party with a favorable EG wasted fewer votes than its opponent, it was able to translate, with greater ease, its share of the total votes cast in the election into legislative seats. In short, the complaint alleges that Act 43 purposely distributed the predicted Republican vote share with greater efficiency so that it translated into a greater number of seats, while purposely distributing the Democratic vote share with less efficiency so that it would translate into fewer seats.

         The plaintiffs' complaint incorporated the EG into a proposed three-part test for partisan gerrymandering. First, plaintiffs would have to establish that a State had an intent to gerrymander for partisan advantage. Second, the plaintiffs would need to prove a partisan effect, by proving that the EG for a plan exceeds a certain numerical threshold (which the plaintiffs proposed, based on historical analysis, to be 7%).[81] If a plan exceeds that threshold, the plaintiffs asserted that it should be presumptively unconstitutional. Third, and finally, the plaintiffs placed the burden on the defendants to rebut the presumption by showing that the plan “is the necessary result of a legitimate state policy, or inevitable given the state's underlying political geography.”[82]If the state is unable to rebut the presumption, then the plan is unconstitutional.

         The plaintiffs alleged that they had satisfied all of these elements. According to the complaint, Act 43 “was drafted and enacted with the specific intent to maximize the electoral advantage of Republicans and harm Democrats to the greatest possible extent.”[83] Additionally, Act 43 “produced a pro-Republican efficiency gap of 13% in 2012 and 10% in 2014.”[84] They further claimed that this EG is unjustified because one of their experts, Professor Mayer, had crafted a “Demonstration Plan” with “an efficiency gap of just 2% in 2012, ” which “perform[ed] at least as well as [Act 43] on every other relevant metric.”[85]

         For these reasons, plaintiffs claimed that Act 43 “treats voters unequally, diluting their voting power based on their political beliefs, in violation of the Fourteenth Amendment's guarantee of equal protection, ” and “unreasonably burdens their First Amendment rights of association and free speech.”[86] They requested a declaration that Act 43 is unconstitutional, an injunction prohibiting further elections under the map, and the drawing of a new redistricting map.[87]

         B. Motion to Dismiss

         The defendants filed a motion to dismiss on August 18, 2015, which contended that the court could not grant relief for three primary reasons. First, the defendants argued that the EG was directly analogous to the proportional-representation standard rejected by the Supreme Court in Vieth v. Jubelirer, 541 U.S. 267, 287-88 (2004).[88] Second, the defendants argued that the EG failed to account for the impact of traditional districting criteria like contiguity and compactness. Finally, the defendants argued that the plaintiffs lacked the standing to challenge Act 43 on a statewide basis, and instead could only challenge their individual districts.

         In an order dated December 17, 2015, we denied defendants' motion to dismiss. We first noted that the claim was justiciable, and that, “[u]ntil a majority of the Supreme Court rules otherwise, lower courts must continue to search for a judicially manageable standard.”[89] We acknowledged the defendants' argument that the EG was analogous to a proportionality standard, but noted that the plaintiffs' experts disagreed with the defendants' contention and that factfinding therefore was needed. We concluded that “[a] determination whether plaintiffs' proposed standard is judicially manageable relies at least in part on the validity of plaintiffs' expert opinions” and that a more developed record would be necessary to resolve that question.[90] Finally, we concluded that the plaintiffs had standing, explaining that “[b]ecause plaintiffs' alleged injury in this case relates to their statewide representation, it follows that they should be permitted to bring a statewide claim.”[91] We noted, however, that the defendants were “free to raise this issue again on a more developed record.”[92]

         C. Motion for Summary Judgment

         Defendants subsequently filed a motion for summary judgment, raising new challenges to the plaintiffs' claims.[93] In the motion, the defendants argued that the EG metric was overinclusive and captured several plans-including court-drawn plans in Wisconsin-that were not drawn with any partisan intent. Furthermore Democratic voters tended to live in cities, which created a “natural packing” effect and distorted the EG.[94]

         The defendants acknowledged the plaintiffs' argument that a requirement of partisan intent could remedy this over-inclusivity problem, but noted that the intent element was not sufficiently demanding. The defendants contended that “[a]s long as redistricting is done by a legislature, it should not be very difficult to prove that the likely political consequences of the reapportionment were intended.”[95] The intent element proposed by the plaintiffs was, therefore, “meaningless, ”[96] and the Supreme Court's decision in Vieth already had ruled out the more demanding standard of “predominant intent.” See 541 U.S. at 284-86 (plurality opinion); id. at 308 (Kennedy, J., concurring).

         The defendants levied two additional criticisms of the plaintiffs' test. First, they noted that the plaintiffs' “Demonstration Plan” was based on a counterfactual scenario and therefore failed to address concerns raised by some Justices about a standard which dealt with a “hypothetical state of affairs.”[97] Second, they alleged that the EG is highly sensitive to “vote-switchers” in swing districts.[98] Had voters in close (or competitive) elections voted for the other party, and had a few candidates of the other party won those seats, then the EG might be dramatically different. In their view, a plan that included such competitive districts could be found unconstitutional under the plaintiffs' proposed standard.

         We denied the motion for summary judgment. We explained that judgment “as a matter of law would be premature because there [we]re factual disputes regarding the validity of plaintiffs' proposed measurement.”[99] We also noted that there was conflicting evidence on the “natural packing” of Democrats in Wisconsin.[100] We further observed that the defendants' arguments might serve as “a suggestion to alter the threshold of the plaintiffs' test and, perhaps, shift the burdens of production or proof.”[101] In particular, we left open the question of the requisite level of intent and directed the plaintiffs to “be prepared to present the strongest evidence that they have on this issue … in order to meet even the most demanding intent requirement.”[102] We therefore set the case for trial.

         D. Witnesses Testifying at Trial

         During the four-day trial, from May 24, 2016, through May 28, 2016, the parties presented their cases through eight witnesses. Some of the testimony of the witnesses involved in the passage of Act 43 has been set forth above, so it is not necessary to summarize it again here. An overview of the remaining testimony is set forth below.[103]

         1. William Whitford

         First to testify was William Whitford, one of the plaintiffs in this litigation and a resident of the 76th Assembly District.[104] Professor Whitford testified to his long-time affiliation with the Democratic Party. He related that he consistently has voted for Democratic candidates, has made donations to Democratic Assembly candidates outside of his own district, has raised money on their behalf, and has donated to the Assembly Democratic Campaign Committee.[105] According to Professor Whitford, given Wisconsin's caucus system, “[t]he only practical way to accomplish [his] policy objectives is to get a majority of the Democrats in the Assembly and the Senate, ” which is “virtually impossible under this apportionment [plan].”[106]

         2. Ronald Keith Gaddie

         Professor Gaddie was deposed by the plaintiffs on March 9, 2016, and a video of that deposition was admitted into evidence and played at trial. As explained in some detail above, [107] Professor Gaddie testified that he was retained by Michael Best & Friedrich on April 11, 2011, to “serv[e] as an independent advisor on the appropriate racial and/or political make-up of legislative and congressional districts in Wisconsin.”[108] In particular, Professor Gaddie took “the electoral data … and constructed a regression analysis … in order to create an estimate of the vote performance of every district.”[109] He explained that this analysis “could be used to create a set of visual aids to demonstrate the partisan structure of Wisconsin politics.”[110]

         As noted above, Professor Gaddie's regression analysis was employed to confirm the validity of the composite measure developed by Foltz, Ottman, and Handrick. Professor Gaddie also used his regression analysis to assess each of the drafters' proposed maps and to create “S” curves to illustrate how the Republican seat share would change based on changes in the party's statewide vote share.[111] In Professor Gaddie's words, the “S” curves were “designed to tease out a potential estimated vote for the legislator in the district and then allow you to also look at that and say, okay, what if the Democrats have a good year? What if the Republicans have a good year? How does it shift?”[112] At least some of the “S” curves were printed and kept in the map room at Michael Best & Friedrich; in print form, the “S” curves were large enough to “cover half th[e] table.”[113]

         3. Adam Foltz

         Foltz worked as a legislative aide for Speaker Fitzgerald and served as one of the primary drafters of Act 43.[114] One additional aspect of Foltz's testimony at trial, however, is worthy of note. His testimony revealed a shortcoming in the drafters' composite partisan measure. Specifically, the composite score likely was skewed to show a greater Republican advantage because of an error in the data for the 2006 Governor's race (one of the components of the composite score). As a result of this error, the partisan estimates in the drafters' spreadsheets were distorted and differed from the estimates reached by Professor Gaddie in his “S” curves. Foltz testified that he had not noticed this discrepancy at the time of drafting. He explained that, at the time, he “didn't spend a whole lot of time with” Professor Gaddie so he “[did]n't really understand the nuts and bolts” of the “S” curves.[115]

         4. Tad Ottman

         Ottman testified to his involvement in the drafting and passage of Act 43.[116]

         5. Kenneth Mayer

         Kenneth Mayer, a professor of political science at the University of Wisconsin, served as an expert witness for the plaintiffs. His ultimate goal was to design an alternative districting plan to Act 43 “that had an efficiency gap as low to zero as I could get it” while also complying with traditional districting criteria to the same extent as Act 43.[117] He first created a regression model that estimated partisanship for each geographic area, so that he could compare his plan to Act 43. To ensure the model was accurate, Professor Mayer compared the predictions made by his regression model to the actual results in 2012. Once he was confident in his model, Professor Mayer “used a GIS redistricting program called Maptitude … to … complete the task of actually drawing the Assembly district map.”[118]

         Professor Mayer's alternative “Demonstration Plan” yields a 2.2% EG in favor of the Republicans, compared to an 11.69% EG yielded by Act 43.[119] According to Professor Mayer, “[o]n all constitutional requirements, the Demonstration Plan is comparable to Act 43.”[120] On cross-examination, however, the defendants pointed out that Professor Mayer did not take account of incumbents when drawing the plan.[121] As a result, his plan paired a greater number of incumbents than Act 43, including one pairing in a majority-minority district.[122] Further, Professor Mayer had not drawn any Senate districts, and therefore had not taken account of disenfranchisement.[123]

         In addition to discussing the Demonstration Plan, Professor Mayer responded to points made by the defendants' experts in their reports. Specifically, Professor Mayer testified that he had conducted a sensitivity analysis to address concerns about the effect of “wave” elections-elections that that dramatically favor one party-on the EG calculations for both the Demonstration Plan and Act 43. He first looked over the last twenty years of elections in Wisconsin and found the greatest and smallest statewide vote shares for each party.[124] Using these vote shares as the likely electoral spectrum, he performed a swing analysis where the Democrats received an additional 3% of the statewide vote (compared to their 2012 share) and the Republicans received an additional 5% of the statewide vote (again compared to their 2012 share) “to see what effect that would have on [his] efficiency gap calculations for the Demonstration Plan.”[125] Professor Mayer's analysis revealed that the Demonstration Plan's EG remained below 4%, regardless of the swing.[126] Act 43's EG, however, increased during a Democratic swing but significantly decreased during a Republican swing. Professor Mayer noted that this is because “we've swung the Republican vote percentage up to 54 percent” but “[t]he number of [Republican] seats doesn't change.”[127] In Professor Mayer's view, the result “is a confirmation that the bias in Act 43 is about the maximum that you can get.”[128]

         6. Simon Jackman

         Simon Jackman, a professor of political science and statistics at Stanford University, also served as an expert witness for the plaintiffs. Professor Jackman primarily testified about the reliability and practicability of the EG. He conducted a survey of 786 state legislative elections (under 206 different districting plans) in the United States between 1972 and the present day, in order to ascertain whether there was a baseline EG which should “trigger scrutiny” and also to compare Act 43 to other redistricting plans.[129]

         Professor Jackman sought to determine how much the EG varied from election year to election year, and whether a districting plan had any impact on that EG. Professor Jackman presented a “scatterplot, ” which graphed the relationship between the EG in the first election year of a redistricting plan (set forth on the x axis) and the average EG over the lifetime of the plan (set forth on the y axis).[130] He found a “relatively strong predictive relationship, ” meaning that a high EG in the first year of a redistricting plan likely means that the EG will remain high for the lifetime of the plan.[131]

         Based on his research, Professor Jackman proposed that an EG of 7% or higher should be legally significant:

I arrived at 7 percent because that seemed to be a reasonable threshold for saying yes, if the first election under a plan produces an efficiency gap score at least that big, then you can be confident now that you've seen not just a one-off, but something that's going to persist over the life of the plan as a signal of - a reliable signal as to the set of efficiency gap scores and the average efficiency gap score you might see if the plan were allowed torun.[132]

         In other words, an EG of 7% in favor of one party in the first election year of a plan almost certainly means that the EG will favor that same party in each subsequent election year under that plan.

         Professor Jackman noted that the EGs for the 2012 and 2014 races in Wisconsin- 13% and 10%, respectively-were particularly high by historical levels. The EG in 2012 was, according to Professor Jackman, “among the largest scores we've seen anywhere” and “in the top 3 percent in terms of magnitude.”[133] Act 43's average EG ranked fifth out of the 206 plans that Professor Jackman surveyed.[134] He testified that he was “virtually certain” that “Act 43 will exhibit a large and durable advantage in favor of Republicans over the rest of the decade.”[135]

         7. Sean Trende[136]

         Sean Trende, Senior Elections Analyst for the website RealClearPolitics, served as an expert witness for the defendants. Mr. Trende primarily testified on the political geography of Wisconsin and its potential effect on the EG.

         Mr. Trende explained that, as a general matter, political geography of the United States currently favors Republicans. In his view, the Democratic coalition has contracted geographically and is now concentrated heavily in urban areas. This concentration, in turn, has hurt the Democratic Party in congressional elections, which tend to favor parties with wider geographic reach.[137]

         Mr. Trende also testified to the political geography of Wisconsin itself, which he analyzed using a measure called the “partisan index” (“PI”). The purpose of the PI is “to determine the partisan lean of political units, ”[138] in order to “compare results across elections.”[139] Mr. Trende explained that the county and ward PI values within Wisconsin have shifted such that the Democratic Party's influence was strengthening in areas “that already leaned Democratic, ” but was contracting geographically.[140]

         Mr. Trende then applied his PI analysis to Wisconsin's wards in what he referred to as a “nearest neighbor” analysis, which assessed the median distance between heavily Democratic wards compared to the median distance between heavily Republican wards.[141] From this analysis, Mr. Trende concluded that it has “become[] progressively harder to draw … Democratic districts elsewhere in the state, ” which in his view explained at least some of the EG.[142] However, he did not determine exactly how much of the EG was attributable to geography.[143]

         8. Nicholas Goedert

         Nicholas Goedert, a visiting professor of political science at Lafayette College, was retained by the defendants to offer opinions on using the EG to measure partisan gerrymandering.

         Professor Goedert's main objection to the EG was its perceived volatility. In Professor Goedert's view, “wave elections are the norm, ” meaning that “much more often than not one party wins by 5 percent or more” of the vote.[144] Therefore, relying on an EG from one election year, which might have taken place during a close election, might not be reliable. Professor Goedert opined that, “at a very minimum, … you need to have some sort of robust sensitivity testing that would be codified if you were going to use the efficiency gap in any way.”[145]

         Professor Goedert also raised a series of policy concerns. First, he pointed out that the EG measure arguably rests on a “2-to-1” vote-to-seats ratio and therefore a certain standard of proportionality.[146] He also noted that there are “normatively good reasons why a state might cho[ose] to draw a map in a certain way and even under these normatively good reasons we could and actually do observe very high efficien[cy] gaps.”[147] For example, Professor Goedert noted that some states may wish to create a more proportional system or encourage competitive elections.[148] In his view, states might be discouraged from pursuing these policy goals if the court adopted the EG as the standard for partisan gerrymandering.

         E. Post-Trial Briefing

         Both parties filed post-trial briefs, which summarized their views of the case in light of the evidence presented at trial. The plaintiffs contended that they satisfied their proposed three-part test by proving discriminatory intent, discriminatory effect, and an absence of a justification for that effect. On intent, the plaintiffs focused in particular on the alternative maps that the drafters rejected, the “S” curves drawn by Professor Gaddie, and memos written by Foltz and Ottman. On effect, the plaintiffs stressed that the EG was not only likely to favor Republicans for the lifetime of the plan, but that it also was likely to stay relatively high. The plaintiffs also highlighted the sensitivity testing that had been conducted by Professors Jackman and Mayer. On justification, the plaintiffs pointed out that the previous Assembly maps in Wisconsin, the alternative plans drafted by the defendants, and Professor Mayer's Demonstration Plan all exhibited lower EGs while arguably complying as well with traditional districting criteria.[149]

         In response, the defendants contended that “a plan that complies with all neutral districting criteria, and whose efficiency gap is consistent with prior court-drawn plans” cannot be unconstitutional.[150] The defendants noted that Act 43's districts were congruent, compact, and fairly equal in population. Further, much of the secrecy surrounding Act 43's enactment was consistent with how bills typically are enacted in Wisconsin. The defendants also pointed to evidence that the political geography in Wisconsin favors Republicans, which they contend explains the trend in EGs towards that party over the past two decades. In the defendants' view, this evidence also illustrates the unreliability of the EG. The defendants concluded that the plaintiffs had not presented enough of a reason for a court to intervene in the redistricting process.

         We express our appreciation to both parties for their thorough and informative presentation, and now turn to the legal principles that must guide our analysis of the case.

         III

         THE LEGAL LANDSCAPE

         The plaintiffs' claim is that Act 43 violates their First and Fourteenth Amendment rights because it discriminates against Democratic voters by diminishing the strength of their votes in comparison to their Republican counterparts.

         We note, as a prefatory matter, that we have acknowledged, throughout this litigation, that the plaintiffs' standing to maintain a cause of action is a threshold issue. See, e.g., Tierney v. Advocate Health and Hosps. Corp., 797 F.3d 449, 450 (7th Cir. 2015). Indeed, in our disposition of the defendants' motion to dismiss, we addressed extensively standing and “conclude[d] that plaintiffs' alleged injury [wa]s sufficiently concrete and particularized under current law to satisfy Lujan [v. Defenders of Wildlife, 504 U.S. 555 (1992), ] with respect to a statewide challenge to the districting plan.”[151] “We reach[ed] the same conclusion with respect to [Lujan's] second and third elements of standing, which are causation and redressability.”[152] We noted, though, that the “defendants [we]re free to raise this issue again on a more developed record.”[153]

         Lujan explains that, because the elements of standing “are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” 504 U.S. at 561. Our assessment of the evidence, as well as our elucidation of the political gerrymandering cause of action, therefore will inform our standing analysis. Consequently, we postpone a plenary discussion of standing until we fully have set forth the evidence as well as the constitutional standard.[154] As a precursor, however, we conclude that the plaintiffs have established a concrete and particularized injury: “[a]s a result of the statewide partisan gerrymandering, Democrats do not have the same opportunity provided to Republicans to elect representatives of their choice to the Assembly. As a result, the electoral influence of plaintiffs and other Democratic voters statewide has been unfairly [and] disproportionately … reduced” for the life of Act 43.[155] Additionally, the plaintiffs have shown causation: Act 43 was designed with the purpose of solidifying Republican control of the legislature for the decennial period and, indeed, has had that effect. Finally, the plaintiffs have established that their injury is redressable: adopting a different statewide districting map would redress the constitutional violation by removing the state-imposed impediment on Democratic voters.[156]

         In resolving the plaintiffs' claim, we face a significant analytical problem. Although the Supreme Court's political gerrymandering cases establish that “an excessive injection of politics is unlawful, ” Vieth, 541 U.S. at 293 (plurality opinion) (emphasis removed), the Court has not come to rest on a single, judicially manageable or discernible test for determining when the line between “acceptable” and “excessive” has been crossed. Indeed, a signature feature of these cases is that no single opinion has garnered a majority of the Court.

         But the absence of a well-trodden path does not relieve us of the obligation to render a decision. True, we cannot anticipate that the Court will alter course from the decisional law, however sparse, that currently exists. See State Oil Co. v. Khan, 522 U.S. 3, 20 (1997) (noting that lower courts should apply outstanding precedent until explicitly overruled by the Supreme Court). Nor can we cobble together the opinions of the various Justices who have written on the matter and call the resulting amalgam binding precedent. See Rodriguez de Quijas v. Shearson/American Exp., Inc., 490 U.S. 477, 484 (1989) (noting that lower courts should follow precedent despite expressed dissatisfaction by various members of the Court until the precedent is overruled explicitly). Nevertheless, understanding that we are in an area where the navigational signs are not yet well-placed, we must decide the case before us and satisfy our “duty … to say what the law is, ” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), or at least what we believe it to be.

         We begin by examining the cases that set forth the constitutional principles which later informed the Court's political gerrymandering decisions.

         A. The Foundational Case Law

         1.

         Over half a century ago, the Supreme Court recognized that the constitutionality of legislative apportionments is governed by the Equal Protection Clause of the Fourteenth Amendment. See Reynolds v. Sims, 377 U.S. 533 (1964). Reynolds was not a political gerrymandering case, but addressed allegations that an outdated apportionment scheme resulted in “serious discrimination with respect to the allocation of legislative representation” in violation of the Equal Protection Clause. Id. at 540. Nevertheless, the Supreme Court spoke to the importance and nature of the right to vote in terms that also inform our consideration of the plaintiffs' claims.

         The Court first observed that the right to vote “is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.” Id. at 561-62. The Court explained that “[m]ost citizens” exercise their “inalienable right to full and effective participation in the political process” by voting for their elected representatives. Id. at 565. “Full and effective participation by all citizens in state government requires, therefore, that each citizen have an equally effective voice in the election of members of his state legislature.” Id. Moreover,

the concept of equal protection has been traditionally viewed as requiring the uniform treatment of persons standing in the same relation to the governmental action questioned or challenged. With respect to the allocation of legislative representation, all voters, as citizens of a State, stand in the same relation regardless of where they live.

Id.

         The Court explained, however, that the requirement of equal treatment was not limited to where a voter resided. Instead, “[a]ny suggested criteria for the differentiation of citizens are insufficient to justify any discrimination, as to the weight of their votes, unless relevant to the permissible purposes of legislative apportionment.” Id. (emphasis added). The Court therefore concluded that,

[s]ince the achieving of fair and effective representation for all citizens is concededly the basic aim of legislative apportionment, … the Equal Protection Clause guarantees the opportunity for equal participation by all voters in the election of state legislators. Diluting the weight of votes because of place of residence impairs basic constitutional rights under the Fourteenth Amendment just as much as invidious discriminations based upon factors such as race or economic status.

Id. at 565-66 (citations omitted).[157]

         Reynolds therefore establishes that, in electing state representatives, the votes of citizens must be weighted equally. If an apportionment scheme violates the principle of one-person, one-vote, it must be justified on the basis of other, permissible, legislative considerations.

         2.

         The Court soon had the opportunity to apply the principles set forth in Reynolds to allegations of vote-dilution brought by racial minorities. In Fortson v. Dorsey, 379 U.S. 433 (1965), the Court considered the constitutionality of an apportionment scheme which included traditional single-member districts and multimember districts, where citizens reside in a comparatively larger district and vote for multiple representatives. Voters alleged that these multimember districts were “defective because county-wide voting in multi-district counties could, as a matter of mathematics, result in the nullification of the unanimous choice of the voters of a district.” Id. at 437. The district court granted summary judgment to the plaintiffs, finding that the statute was unconstitutional on its face.

         The Supreme Court disagreed that such districts were unconstitutional per se, and it declined to strike the plan. The Court acknowledged, however, that “[i]t might well be that, designedly or otherwise, a multi-member constituency apportionment scheme, under the circumstances of a particular case, would operate to minimize or cancel out the voting strength of racial or political elements of the voting population.” Id. at 439 (emphasis added). The Court, therefore, remanded for factfinding to determine whether the plaintiffs could meet this burden.

         Following Fortson, the Court has held that multimember districts violate the Constitution when the plaintiffs have produced evidence that an election was “not equally open to participation by the group in question-that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice.” White v. Regester, 412 U.S. 755, 766 (1973).

         Later cases refined the methodology by which courts evaluate claims of vote dilution. In Rogers v. Lodge, 458 U.S. 613 (1982), Burke County, Georgia, employed an at-large system of elections to determine its Board of Commissioners, rather than dividing the county into districts and allowing each district to choose a commissioner. Id. at 615. African-American citizens in that county brought an action in which they alleged that the county's system of at-large elections violated their First, Thirteenth, Fourteenth, and Fifteenth Amendment rights by diluting their voting power. The district court held that, although the at-large electoral system was neutral in origin, it was being maintained for invidious purposes and therefore ordered the county to be divided into districts for purposes of electing commissioners.

         The Supreme Court affirmed. It explained that districts violate the Equal Protection Clause when “‘conceived or operated as purposeful devices to further racial discrimination' by minimizing, cancelling out or diluting the voting strength of” minority populations. Id. at 617. These cases “are thus subject to the standard of proof generally applicable to Equal Protection Clause cases, ” specifically the “‘quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose.'” Id. (quoting Washington v. Davis, 426 U.S. 229, 240 (1976)). Discriminatory intent, however, “need not be proved by direct evidence, ” but may be “‘inferred from the totality of the relevant facts.'” Id. at 618 (quoting Washington, 426 U.S. at 242).

         Applying this standard, the Court “decline[d] to overturn the essential finding of the District Court … that the at-large system … ha[d] been maintained for the purpose of denying blacks equal access to the political processes in the county.” Id. at 627. Evidence of discriminatory purpose included the fact that no African American ever had been elected despite “overwhelming evidence of bloc voting along racial lines.” Id. at 623-24. There also was evidence of historical discrimination in the form of literacy tests, poll taxes, and school segregation, id. at 624-25; of a disparity in socio-economic status that “result[ed] in part from the lingering effects of past discrimination, ” id. at 626 (internal quotation marks omitted); and of county elected officials' unresponsiveness and insensitivity to African-American constituents, see Id. at 625-26.[158]

         Although focused on racially discriminatory apportionment schemes, Fortson and subsequent vote-dilution cases establish that Equal Protection concerns arise when apportionment plans “minimize or cancel out the voting strength” either of racial minorities or, as we have here, “political elements of the voting population.” 379 U.S. at 439 (emphasis added). Moreover, they instruct that vote-dilution cases are governed by the same standards as other equal-protection claims, namely the plaintiffs must establish both a discriminatory intent and a discriminatory effect.

         B. Present Supreme Court Precedent

         1.

         The Court drew heavily from the Fortson line of cases in resolving the political gerrymandering claim asserted in Gaffney v. Cummings, 412 U.S. 735 (1973). In Gaffney, the Connecticut Apportionment Board created a redistricting plan designed to yield Democratic and Republican seats in proportion to the statewide vote. A three-judge district court invalidated the plan on the ground that the deviations from equality of population in both houses were not “justified by any sufficient state interest, ” “[m]ore particularly, … that the policy of partisan political structuring … cannot be approved as a legitimate reason for violating the requirement of numerical equality of population in districting.” Id. at 740 (internal quotation marks omitted).

         The Supreme Court reversed. In its analysis, the Supreme Court acknowledged that “[s]tate legislative districts may be equal or substantially equal in population and still be vulnerable under the Fourteenth Amendment”; it stated:

A districting plan may create multimember districts perfectly acceptable under equal population standards, but invidiously discriminatory because they are employed “to minimize or cancel out the voting strength of racial or political elements of the voting population.” We must, therefore, respond to appellees' claims in this case that even if acceptable populationwise, the Apportionment Board's plan was invidiously discriminatory because a “political fairness principle” was followed in making up the districts in both the House and Senate.

Id. at 751-52 (citations omitted).

         The Court, however, was “unconvinced” that the plan violated the Fourteenth Amendment. Id. at 752. The Court observed that Connecticut's Apportionment Board had sought to “achieve a rough approximation of the statewide political strengths of the Democratic and Republican parties, ” by implementing a “political fairness” plan. Id. (internal quotation marks omitted). The Court saw no constitutional impediment to the State's considering partisan interests in this way. Id. at 752-53.

         The Court made clear, however, that the drawing of legislative districts along political lines “is not wholly exempt from judicial scrutiny under the Fourteenth Amendment.” Id. at 754. Relying on its vote-dilution cases, it gave as an example “multimember districts [that] may be vulnerable” to constitutional challenges “if racial or political groups have been fenced out of the political process and their voting strength invidiously minimized.” Id. “Beyond this, ” the Court continued, it had “not ventured far or attempted the impossible task of extirpating politics from what are the essentially political processes of the sovereign States.” Id.

         In closing, however, the Court was careful to distinguish the plan before it, which employed political classifications for benign-even salutary-purposes, with plans that did not have proportional representation as their aim:

[N]either we nor the district courts have a constitutional warrant to invalidate a state plan, otherwise within tolerable population limits, because it undertakes, not to minimize or eliminate the political strength of any group or party, but to recognize it and, through districting, provide a rough sort of proportional representation in the legislative halls of the State.

Id. (emphasis added).

         In sum, the Court reiterated that its concern was invidious discrimination by the State; absent the plaintiffs' establishing an intent to dilute the strength of a particular group or party, the Equal Protection Clause was not offended.

         The Court next addressed partisan gerrymandering in Davis v. Bandemer, 478 U.S. 109 (1986). Because Bandemer was the first case in which a party directly raised, and the Court squarely addressed, a claim that a legislative redistricting plan invidiously discriminated against members of a political party, we treat it in some depth.

         In Bandemer, Indiana Democrats challenged the 1981 state reapportionment plan passed by a Republican-controlled legislature. Specifically, they alleged that the plan was intended to disadvantage Democrats in electing representatives of their choosing, in violation of the Equal Protection Clause under the Fourteenth Amendment. In November 1982, before the case went to trial, elections were held under the new plan. The district court had “sustained an equal protection challenge to Indiana's 1981 state apportionment on the basis that the law unconstitutionally diluted the votes of Indiana Democrats, ” id. at 113 (plurality opinion), but the Supreme Court reversed. A majority of the Court[159] first concluded that the issue before the Court, like those in the one-person, one-vote cases and in the vote-dilution cases, “is one of representation” and “decline[d] to hold that such claims [we]re never justiciable.” Id. at 124. “As Gaffney demonstrates, ” the Court continued, the fact that a “claim is submitted by a political group, rather than a racial group, does not distinguish it in terms of justiciability.” Id. at 125. That the complaining group does not share an “immutable” characteristic or otherwise “has not been subject to the same historical stigma may be relevant to the manner in which the case is adjudicated, but these differences do not justify a refusal to entertain such a case.” Id.

         Turning to the standard to be applied, a majority of the Court agreed that the “plaintiffs were required to prove both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.” Id. at 127.[160] A majority of the Court also believed that the first requirement-intentional discrimination against an identifiable group-had been met. See Id. (citing Mobile v. Bolden, 446 U.S. 55, 67-68 (1980)).[161] Indeed, it observed that, “[a]s long as redistricting is done by a legislature, it should not be very difficult to prove that the likely political consequences of the reapportionment were intended.” Id. at 129.

         The plurality, however, rejected “the District Court's legal and factual bases for concluding that the 1981 Act visited a sufficiently adverse effect on the appellees' constitutionally protected rights to make out a violation of the Equal Protection Clause.” Id. at 129. It was not the case that “any apportionment scheme that purposely prevents proportional representation is unconstitutional.” Id. at 129-30 (emphasis added). Indeed, the plurality noted that precedent “clearly foreclose[d] any claim that the Constitution requires proportional representation or that legislatures in reapportioning must draw district lines to come as near as possible to allocating seats to the contending parties in proportion to what their anticipated statewide vote will be.” Id. at 130 (first citing Whitcomb v. Chavis, 403 U.S. 124, 153 (1971); then citing White, 412 U.S. at 765-68).

         Moreover, the plurality held “that a particular apportionment scheme makes it more difficult for a particular group in a particular district to elect the representatives of its choice” also did “not render that scheme constitutionally infirm.” Id. at 131. In reaching this conclusion, it noted that the Court had refused to approve the use of multimember districts “[o]nly where there [wa]s evidence that excluded groups ha[d] ‘less opportunity to participate in the political processes and to elect candidates of their choice.'” Id. (quoting Rogers, 458 U.S. at 624). It emphasized that “unconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voter's or a group of voters' influence on the political process as a whole”:

[A]n equal protection violation may be found only where the electoral system substantially disadvantages certain voters in their opportunity to influence the political process effectively. In this context, such a finding of unconstitutionality must be supported by evidence of continued frustration of the will of a majority of the voters or effective denial to a minority of voters of a fair chance to influence the political process.

Id. at 132-33.

         Applying this standard to the facts before them, the plurality concluded that “this threshold condition” had not been met. Id. at 134. It observed that the district court had relied “primarily on the results of the 1982 elections” in which Democratic candidates had garnered “51.9% of the votes cast statewide, ” but secured only 43 seats. Id. Republicans, however, had received only “48.1% … yet, of the 100 seats to be filled, Republican candidates won 57.” Id.[162] “Relying on a single election to prove unconstitutional discrimination, ” however, was “unsatisfactory.” Id. at 135. The plurality specifically noted a lack of evidence that (1) the 1981 Act prevented the Democrats from “secur[ing] … sufficient vote[s] to take control of the assembly”; (2) “the 1981 reapportionment would consign the Democrats to a minority status in the Assembly throughout the 1980's”; or (3) “the Democrats would have no hope of doing any better in the reapportionment that would occur after the 1990 census.” Id. at 135-36. “Without findings of this nature, ” the plurality stated, “the District Court erred in concluding that the 1981 Act violated the Equal Protection Clause.” Id. at 136.

         The plurality then addressed a few aspects of Justice Powell's opinion. “[T]he crux of [his] analysis” was that-“at least in some cases-the intentional drawing of district boundaries for partisan ends and for no other reason violates the Equal Protection Clause.” Id. at 138. It disagreed that “the specific intention of disadvantaging one political party's election prospects, ” standing alone, established a constitutional violation. Id. at 139. Instead, invidious intent must be coupled with evidence that “the redistricting d[id] in fact disadvantage [a party] at the polls, ” and the disadvantage must be more than “a mere lack of proportionate results in one election.” Id. The plurality, however, acknowledged that “election results” were “relevant to a showing of the effects required to prove a political gerrymandering claim under our view. And the district configurations may be combined with vote projections to predict future election results, ” which also would be relevant to showing discriminatory effects. Id. at 141.

         The plurality recognized that its own test “may be difficult of application.” Id. at 142. “Nevertheless, ” it concluded, the test “recognizes the delicacy of intruding on this most political of legislative functions and is at the same time consistent with our prior cases regarding individual multimember districts, which have formulated a parallel standard.” Id. at 143.

         Justice O'Connor, joined by Chief Justice Burger and Justice Rehnquist, concurred in the judgment, but wrote separately. Justice O'Connor took issue with the plurality's reliance on both the “one-person, one-vote” principle and the Court's vote-dilution cases. Id. at 146-55 (O'Connor, J., concurring). In her view,

Reynolds makes plain that the one person, one vote principle safeguards the individual's right to vote, not the interests of political groups: “To the extent that a citizen's right to vote is debased, he is that much less a citizen. The fact that an individual lives here or there is not a legitimate reason for overweighting or diluting the efficacy of his vote.”

Id. at 149-50 (quoting Reynolds, 377 U.S. at 567) (emphasis added). Justice O'Connor also viewed political gerrymandering as distinct from racial gerrymandering. She explained that, “where a racial minority group is characterized by ‘the traditional indicia of suspectness' and is vulnerable to exclusion from the political process, individual voters who belong to that group enjoy some measure of protection against intentional dilution of their group voting strength by means of racial gerrymandering.” Id. at 151 (citations omitted). “[M]embers of the Democratic and Republican Parties, ” however, did not constitute “a discrete and insular group vulnerable to exclusion from the political process by some dominant group: these political parties are the dominant groups, and the Court has offered no reason to believe that they are incapable of fending for themselves through the political process.” Id. at 152 (emphasis in original).

         In an opinion concurring in part and dissenting in part, Justice Powell, joined by Justice Stevens, concluded that a redistricting plan violated the Constitution when it served “no purpose other than to favor one segment-whether racial, ethnic, religious, economic, or political-that may occupy a position of strength at a particular time, or to disadvantage a politically weak segment of the community.” Id. at 164 (internal quotation marks omitted) (quoting Karcher v. Daggett, 462 U.S. 725, 748 (1983) (Stevens, J., concurring in part and dissenting in part)). He believed that this conclusion followed from the principles articulated in Reynolds, namely “that equal protection encompasses a guarantee of equal representation, requiring a State to seek to achieve through redistricting ‘fair and effective representation for all citizens.'” Id. at 166 (quoting Reynolds, 377 U.S. at 565-66). He further explained that

[t]he concept of “representation” necessarily applies to groups: groups of voters elect representatives, individual voters do not. Gross population disparities violate the mandate of equal representation by denying voters residing in heavily populated districts, as a group, the opportunity to elect the number of representatives to which their voting strength otherwise would entitle them. While population disparities do dilute the weight of individual votes, their discriminatory effect is felt only when those individual votes are combined. Thus, the fact that individual voters in heavily populated districts are free to cast their ballot has no bearing on a claim of malapportionment.

Id. at 167 (emphasis in original).

         Applying these standards, Justice Powell believed that the “case present[ed] a paradigm example of unconstitutional discrimination against the members of a political party that happened to be out of power” and would have found that Indiana's redistricting plan violated the Equal Protection Clause. Id. at 185.

         Although history would establish that the plurality correctly predicted that its test for political gerrymandering was, in fact, “difficult of application, ” id. at 142 (plurality opinion), Bandemer nevertheless provides some meaningful guidance. First, the Court's one-person, one-vote and vote-dilution cases provide the foundation for evaluating claims of political gerrymandering. Second, that a “claim is submitted by a political group rather than a racial group, does not distinguish it in terms of justiciability.” Id. at 125. And, third, a successful political gerrymandering claim must include a showing of both discriminatory intent and discriminatory effect.

         The Court revisited the issue of political gerrymandering in Vieth v. Jubelirer, 541 U.S. 267 (2004). In Vieth, the Court addressed an action filed by Democratic voters in Pennsylvania that challenged the state legislature's new congressional districting plan. Justice Scalia, writing for a plurality, began with a critique of the standard articulated in Bandemer:

Over the dissent of three Justices, the Court held in Davis v. Bandemer that, since it was “not persuaded that there are no judicially discernible and manageable standards by which political gerrymander cases are to be decided, ” 478 U.S., at 123, such cases were justiciable. … There was no majority on that point. Four of the Justices finding justiciability believed that the standard was one thing, see id., at 127 (plurality opinion of White, J., joined by Brennan, Marshall, and Blackmun, JJ.); two believed it was something else, see id., at 161 (Powell, J., joined by STEVENS, J., concurring in part and dissenting in part). The lower courts have lived with that assurance of a standard (or more precisely, lack of assurance that there is no standard), coupled with that inability to specify a standard, for the past 18 years.

Id. at 278-79 (plurality opinion) (emphasis in original). In the plurality's view, “[e]ighteen years of judicial effort with virtually nothing to show for it justif[ied] … revisiting the question whether the standard promised by Bandemer exists.” Id. at 281. It concluded that “no judicially discernible and manageable standards for adjudicating political gerrymandering claims have emerged. Lacking [such standards], ” it concluded, “political gerrymandering claims are nonjusticiable and … Bandemer was wrongly decided.” Id.

         The plurality turned first to the shortcomings of the test proposed by the plaintiffs:

To satisfy appellants' intent standard, a plaintiff must “show that the mapmakers acted with a predominant intent to achieve partisan advantage, ” which can be shown “by direct evidence or by circumstantial evidence that other neutral and legitimate redistricting criteria were subordinated to the goal of achieving partisan advantage.” … As compared with the Bandemer plurality's test of mere intent to disadvantage the plaintiff's group, this proposal seemingly makes the standard more difficult to meet-but only at the expense of making the standard more indeterminate.

Id. at 284. The plurality determined that, in a statewide plan, there was no principled way to discern predominant intent.

         The test also included an “effects” prong: “The requisite effect is established when ‘(1) the plaintiffs show that the districts systematically “pack” and “crack” the rival party's voters, and (2) the court's examination of the “totality of circumstances” confirms that the map can thwart the plaintiffs' ability to translate a majority of votes into a majority of seats.'” Id. at 286-87 (footnote omitted). According to the plurality, this aspect of the test also was not judicially discernible because there is no constitutional right to proportional representation: the Constitution “guarantees equal protection of the law to persons, not equal representation in government to equivalently sized groups.” Id. at 288. Nor, in the plurality's opinion, was the proposed test judicially manageable because there was no reliable method to establish “a party's majority status” or for “ensur[ing] that that party wins a majority of seats-unless we radically revise the States' traditional structure for elections.” Id. at 288-89.

         The plurality then critiqued the standards proposed by the dissenting Justices. Contrary to the view held by other members of the Court, the plurality did not believe that the “one-person, one-vote cases” had any “bearing upon this question, ” either “in principle” or “in practicality.” Id. at 290 (first citing Reynolds, 377 U.S. 533; then citing Wesberry v. Sanders, 376 U.S. 1 (1964)).

Not in principle, because to say that each individual must have an equal say in the selection of representatives, and hence that a majority of individuals must have a majority say, is not at all to say that each discernible group, whether farmers or urban dwellers or political parties, must have representation equivalent to its numbers. And not in practicality, because the easily administrable standard of population equality adopted by Wesberry and Reynolds enables judges to decide whether a violation has occurred (and to remedy it) essentially on the basis of three readily determined factors-where the plaintiff lives, how many voters are in his district, and how many voters are in other districts; whereas requiring judges to decide whether a districting system will produce a statewide majority for a majority party casts them forth upon a sea of imponderables, and asks them to make determinations that not even election experts can agree upon.

Id. at 290.

         Turning first to Justice Stevens's view, the plurality agreed that “severe partisan gerrymanders” were “incompatib[le] … with democratic principles.” Id. at 292. It could not agree, however, that political gerrymandering should be treated equivalently to racial gerrymandering. Id. at 293-95. In the plurality's view, “[a] purpose to discriminate on the basis of race receives the strictest scrutiny under the Equal Protection Clause, while a similar purpose to discriminate on the basis of politics does not.” Id. at 293. The plurality was unpersuaded by Justice Stevens's reference to political patronage cases, contending that “the underlying rights, and consequently constitutional harms, are not comparable.” Id. at 294.

         The plurality also rejected Justice Souter's multi-factor test, which was “loosely based in form on [the Court's] Title VII cases.” Id. at 295. According to the plurality, this test was “doomed to failure” because “[n]o test-yea, not even a five-part test-can possibly be successful unless one knows what he is testing for. In the present context, the test ought to identify deprivation of that minimal degree of representation or influence to which a political group is constitutionally entitled.” Id. at 297. Although Justice Souter “vaguely describe[d] the harm he is concerned with as vote dilution, a term which usually implies some actual effect on the weight of a vote, ” no element of his test measured this effect. Id. Consequently, the plurality was unsure of “the precise constitutional deprivation his test [wa]s designed to identify and prevent.” Id.

         Addressing Justice Breyer's dissent, the plurality agreed “that our Constitution sought to create a basically democratic form of government, ” but found that this was “a long and impassable distance away from the conclusion that the Judiciary may assess whether a group (somehow defined) has achieved a level of political power (somehow defined) commensurate with that to which they would be entitled absent unjustified political machinations (whatever that means).” Id. at 299 (internal quotation marks omitted) (citations omitted).

         The plurality concluded, therefore, that the Equal Protection Clause did not “provide[] a judicially enforceable limit on the political considerations that the States and Congress may take into account when districting.” Id. at 305.

         Justice Kennedy concurred in the judgment. He agreed that “[a] decision ordering the correction of all election district lines drawn for partisan reasons would commit federal and state courts to unprecedented intervention in the American political process.” Id. at 306 (Kennedy, J., concurring in the judgment). “The Court, ” he stated, was “correct to refrain from directing this substantial intrusion into the Nation's political life.” Id. Furthermore, “[w]hile agreeing with the plurality that the complaint the appellants filed in the District Court must be dismissed, and while understanding that great caution is necessary when approaching this subject, [he] would not foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases.” Id.

         Justice Kennedy believed that

[a] determination that a gerrymander violates the law must rest on something more than the conclusion that political classifications were applied. It must rest instead on a conclusion that the classifications, though generally permissible, were applied in an invidious manner or in a way unrelated to any legitimate legislative objective.

Id. at 307 (emphasis added). In this case, Justice Kennedy explained, the plaintiffs had not overcome the dual hurdles of discernibility and manageability:

The fairness principle appellants propose is that a majority of voters in the Commonwealth should be able to elect a majority of the Commonwealth's congressional delegation. There is no authority for this precept. Even if the novelty of the proposed principle were accompanied by a convincing rationale for its adoption, there is no obvious way to draw a satisfactory standard from it for measuring an alleged burden on representational rights. The plurality demonstrates the shortcomings of the other standards that have been considered to date. See ante, at Parts III and IV (demonstrating that the standards proposed in Davis v. Bandemer, 478 U.S. 109 (1986), by the parties before us, and by our dissenting colleagues are either unmanageable or inconsistent with precedent, or both).

Id. at 308.

         However, Justice Kennedy was not willing to go so far as the plurality and hold partisan gerrymanders nonjusticiable. Although agreeing that there were “weighty arguments for holding cases like these to be nonjusticiable” and acknowledging that “those arguments may prevail in the long run, ” it was Justice Kennedy's view that “the arguments [we]re not so compelling that they require us now to bar all future claims of injury from a partisan gerrymander.” Id. at 309. According to Justice Kennedy, the Court's “willingness to enter the political thicket of the apportionment process with respect to one-person, one-vote claims ma[de] it particularly difficult to justify a categorical refusal to entertain claims against this other type of gerrymandering.” Id. at 310.

         Justice Kennedy noted specifically that, in the end, it may be the First Amendment, not the Equal Protection Clause, which provides the framework within which political gerrymandering claims should be analyzed. See Id. at 314. “After all, ” he explained, “these allegations involve the First Amendment interest of not burdening or penalizing citizens because of their participation in the electoral process, their voting history, their association with a political party, or their expression of political views. Under general First Amendment principles those burdens in other contexts are unconstitutional absent a compelling government interest.” Id. (citing Elrod v. Burns, 427 U.S. 347 (1976) (plurality opinion)). Moreover, a “‘[r]epresentative democracy … is unimaginable without the ability of citizens to band together in promoting among the electorate candidates who espouse their political views.'” Id. (quoting California Democratic Party v. Jones, 530 U.S. 567, 574 (2000)). According to Justice Kennedy, these precedents demonstrate that

First Amendment concerns arise where a State enacts a law that has the purpose and effect of subjecting a group of voters or their party to disfavored treatment by reason of their views. In the context of partisan gerrymandering, that means that First Amendment concerns arise where an apportionment has the purpose and effect of burdening a group of voters' representational rights.

Id.

         Justice Kennedy disagreed with the plurality that application of a First Amendment standard would render invalid “all consideration of political interests in an apportionment.” Id. at 315. He explained:

The inquiry is not whether political classifications were used. The inquiry instead is whether political classifications were used to burden a group's representational rights. If a court were to find that a State did impose burdens and restrictions on groups or persons by reason of their views, there would likely be a First Amendment violation, unless the State shows some compelling interest.

Id. Because “[t]he First Amendment analysis concentrates on whether the legislation burdens the representational rights of the complaining party's voters for reasons of ideology, beliefs, or political association, ” Justice Kennedy suggested that “[t]he analysis allows a pragmatic or functional assessment that accords some latitude to the States.” Id.

         Justice Stevens dissented. Drawing both on the Court's racial gerrymandering cases, see id. at 322-23 (Stevens, J., dissenting) (citing, among other authorities, Shaw v. Reno, 509 U.S. 630 (1993)), and the Court's political patronage cases, see Id. at 324 (citing Elrod, 427 U.S. 347)), Justice Stevens believed that the plaintiffs had standing, presented a redressable claim, and were entitled to relief. Specifically, he observed that “political belief and association constitute the core of those activities protected by the First Amendment” and that government employment decisions that burden these interests are subject to strict scrutiny. Id. (quoting Elrod, 427 U.S. at 356 (plurality opinion)). “Thus, ” he continued, “unless party affiliation is an appropriate requirement for the position in question, government officials may not base a decision to hire, promote, transfer, recall, discharge, or retaliate against an employee, or to terminate a contract, on the individual's partisan affiliation or speech.” Id. (citing, among other sources, O'Hare Truck Service, Inc. v. City of Northlake, 518 U.S. 712, 716-17 (1996)). Justice Stevens concluded that “[i]t follows” therefore “that political affiliation is not an appropriate standard for excluding voters from a congressional district.” Id. at 325.[163]

         Justice Souter wrote a dissenting opinion, joined by Justice Ginsburg, which rested on the “one-person, one-vote” principle. Id. at 343 (Souter, J., dissenting) (citing Reynolds, 377 U.S. 533). According to Justice Souter:

Creating unequally populous districts is not, however, the only way to skew political results by setting district lines. The choice to draw a district line one way, not another, always carries some consequence for politics, save in a mythical State with voters of every political identity distributed in an absolutely gray uniformity. The spectrum of opportunity runs from cracking a group into impotent fractions, to packing its members into one district for the sake of marginalizing them in another. However equal districts may be in population as a formal matter, the consequence of a vote cast can be minimized or maximized, and if unfairness is sufficiently demonstrable, the guarantee of equal protection condemns it as a denial of substantial equality.

Id. (citation omitted). Justice Souter acknowledged the Court's prior struggles in articulating a workable test for political gerrymandering. Accordingly, he suggested preserving the holding in Bandemer that political gerrymandering was justiciable, but “otherwise start[ing] anew.” Id. at 346. Specifically, he suggested using a burden-shifting test similar to that in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), “calling for a plaintiff to satisfy elements of a prima facie cause of action, at which point the State would have the opportunity not only to rebut the evidence supporting the plaintiff's case, but to offer an affirmative justification for the districting choices, even assuming the proof of the plaintiff's allegations.” Vieth, 541 U.S. at 346.[164]

         Justice Breyer, also in dissent, opined that “the workable democracy that the Constitution foresees” must include “a method for transforming the will of the majority into effective government.” Id. at 356 (Breyer, J., dissenting). In his view, this method could be harmed by “the unjustified use of political factors to entrench a minority in power.” Id. at 360. Justice Breyer quoted extensively from Reynolds to support his view that “[t]he democratic harm of unjustified entrenchment is obvious”:

“Logically, in a society ostensibly grounded on representative government, it would seem reasonable that a majority of the people of a State could elect a majority of that State's legislators. … Since legislatures are responsible for enacting laws by which all citizens are to be governed, they should be bodies which are collectively responsive to the popular will.” Reynolds, 377 U.S. at 565.
Where unjustified entrenchment takes place, voters find it far more difficult to remove those responsible for a government they do not want; and these democratic values are dishonored.

Id. at 361. Consequently, “gerrymandering that leads to entrenchment amounts to an abuse that violates the Constitution's Equal Protection Clause.” Id. at 362.

         Although the test articulated in Bandemer proved unworkable, Vieth has placed district courts in an even greater quandary. For all its shortcomings, the Bandemer decision at least set forth a test for district courts to apply. In Vieth, however, the members of the Court were unanimous only in their willingness to jettison the test set forth in Bandemer. We conclude, therefore, that the specific test for political gerrymandering set forth in Bandemer no longer is good law. Moreover, any attempt to craft a new test ought to avoid those shortcomings in the Bandemer test specifically identified by the members of the Court.

         4.

         The Supreme Court's most recent case on partisan gerrymandering, League of United Latin American Citizens v. Perry (“LULAC”), 548 U.S. 399 (2006), gives little more in the way of guidance. Nevertheless, we set forth those aspects of the decision that may be useful in evaluating the plaintiffs' claims.

         In the 1990s, the Democrats controlled both houses of the Texas legislature and the statehouse and enacted what was “later described as the shrewdest gerrymander of the 1990s.” Id. at 410 (internal quotation marks omitted). Following the 2000 census, Texas was entitled to two additional congressional seats. However, the legislature now was split politically between a Republican Senate and a Democratic House of Representatives. “As so constituted, the legislature was unable to pass a redistricting scheme, ” resulting in a court-ordered plan which left “[t]he 1991 Democratic Party gerrymander largely in place as a ‘legal' plan.” Id. at 411-12 (alteration in original). In 2002, however, Republicans gained control of both houses of the legislature and enacted legislation that re-drew congressional districting lines; these new districts resulted in the Republicans securing 21 seats with 58% of the vote in statewide races, compared to the Democrats' 11 seats with 41% of the vote.

         Shortly after the plan was enacted, some Texas voters mounted both statutory and constitutional challenges to it. In the constitutional challenge, the plaintiffs claimed that a decision to enact a new redistricting plan mid-decade, “when solely motivated by partisan objectives, violates equal protection and the First Amendment because it serves no legitimate public purpose and burdens one group because of its political opinions and affiliation.” Id. at 416-17. The Supreme Court disagreed.

         Justice Kennedy, joined by Justices Souter and Ginsburg, opined that “a successful claim attempting to identify unconstitutional acts of partisan gerrymandering must do what appellants' sole-motivation theory explicitly disavows: show a burden, as measured by a reliable standard, on the complainants' representational rights.” Id. at 418 (opinion of Kennedy, J.). Moreover, Justice Kennedy was concerned that the plaintiffs' proposed test would exempt from constitutional scrutiny other, more serious examples of partisan gerrymandering:

The text and structure of the Constitution and our case law indicate there is nothing inherently suspect about a legislature's decision to replace mid-decade a court-ordered plan with one of its own. And even if there were, the fact of mid-decade redistricting alone is no sure indication of unlawful political gerrymanders. Under appellants' theory, a highly effective partisan gerrymander that coincided with decennial redistricting would receive less scrutiny than a bumbling, yet solely partisan, mid-decade redistricting. More concretely, the test would leave untouched the 1991 Texas redistricting, which entrenched a party on the verge of minority status, while striking down the 2003 redistricting plan, which resulted in the majority Republican Party capturing a larger share of the seats. A test that treats these two similarly effective power plays in such different ways does not have the reliability appellants ascribe to it.

Id. at 418-19. Justice Kennedy also noted that the current Texas map could “be seen as making the party balance more congruent to statewide party power.” Id. at 419. “To be sure, ” Justice Kennedy continued,

there is no constitutional requirement of proportional representation, and equating a party's statewide share of the vote with its portion of the congressional delegation is a rough measure at best. Nevertheless, a congressional plan that more closely reflects the distribution of state party power seems a less likely vehicle for partisan discrimination than one that entrenches an electoral minority.

Id. at 419 (emphasis added).

         Justice Kennedy also commented on a submission by an amicus which “propose[d] a symmetry standard that would measure partisan bias by ‘compar[ing] how both parties would fare hypothetically if they each (in turn) had received a given percentage of the vote.'” Id. at 419. He stated:

Amici's proposed standard does not compensate for appellants' failure to provide a reliable measure of fairness. The existence or degree of asymmetry may in large part depend on conjecture about where possible vote-switchers will reside. Even assuming a court could choose reliably among different models of shifting voter preferences, we are wary of adopting a constitutional standard that invalidates a map based on unfair results that would occur in a hypothetical state of affairs. Presumably such a challenge could be litigated if and when the feared inequity arose. More fundamentally, the counterfactual plaintiff would face the same problem as the present, actual appellants: providing a standard for deciding how much partisan dominance is too much. Without altogether discounting its utility in redistricting planning and litigation, I would conclude asymmetry alone is not a reliable measure of unconstitutional partisanship.

Id. at 420 (citation omitted) (emphasis added). Justice Kennedy thus concluded that “a legislature's decision to override a valid, court-drawn plan mid-decade” is not “sufficiently suspect to give shape to a reliable standard for identifying unconstitutional political gerrymanders.” Id. at 423. Consequently, he concluded that the petitioners had not established a “legally impermissible use of political classifications” and had not stated a claim on which relief could be granted. Id.

         Justice Stevens, in a separate opinion joined by Justice Breyer, reiterated the view of impartiality that he had articulated in Vieth. He observed that “the Fourteenth Amendment's prohibition against invidious discrimination[] and the First Amendment's protection of citizens from official retaliation based on their political affiliation” “limit the State's power to rely exclusively on partisan preference in drawing district lines.” Id. at 461 (Stevens, J., concurring in part and dissenting in part). He explained:

The equal protection component of the Fourteenth Amendment requires actions taken by the sovereign to be supported by some legitimate interest, and further establishes that a bare desire to harm a politically disfavored group is not a legitimate interest. Similarly, the freedom of political belief and association guaranteed by the First Amendment prevents the State, absent a compelling interest, from “penalizing citizens because of their participation in the electoral process, … their association with a political party, or their expression of political views.” These protections embodied in the First and Fourteenth Amendments reflect the fundamental duty of the sovereign to govern impartially.

Id. at 461-62 (citations omitted) (quoting Vieth, 541 U.S. at 314 (Kennedy, J., concurring in the judgment)). Justice Stevens also set forth some of the representational harms engendered by political gerrymanders. Specifically, he noted that, “in addition to the possibility that a representative may believe her job is only to represent the interests of a dominant constituency, a representative may feel more beholden to the cartographers who drew her district than to the constituents who live there.” Id. at 470.

         Justice Breyer, in addition to joining Justice Stevens's opinion, wrote separately to describe why he believed that the plan violated the Constitution:

[B]ecause the plan entrenches the Republican Party, the State cannot successfully defend it as an effort simply to neutralize the Democratic Party's previous political gerrymander. Nor has the State tried to justify the plan on nonpartisan grounds, either as an effort to achieve legislative stability by avoiding legislative exaggeration of small shifts in party preferences or in any other way.
In sum, “the risk of entrenchment is demonstrated, ” “partisan considerations [have] render[ed] the traditional district-drawing compromises irrelevant, ” and “no justification other than party advantage can be found.” The record reveals a plan that overwhelmingly relies upon the unjustified use of purely partisan line-drawing considerations and which will likely have seriously harmful electoral consequences. For these reasons, I believe the plan in its entirety violates the Equal Protection Clause.

Id. at 492 (Breyer, J., concurring in part and dissenting in part) (quoting Vieth, 541 U.S. at 359, 367 (Breyer, J., dissenting)) (emphasis in original) (citations omitted).

         Justices Souter and Ginsburg adhered to their view, set forth in Vieth, as to the proper test for political gerrymandering, but concluded that there was “nothing to be gained by working through these cases on th[at] standard” because, like in Vieth, the Court “ha[d] no majority for any single criterion of impermissible gerrymander.” Id. at 483 (Souter, J., concurring in part and dissenting in part). Chief Justice Roberts, joined by Justice Alito, agreed with Justice Kennedy “that appellants ha[d] not provided a reliable standard for identifying unconstitutional political gerrymanders, ” but took no position as to “whether appellants ha[d] failed to state a claim on which relief can be granted, or ha[d] failed to present a justiciable controversy.” Id. at 492-93 (Roberts, C.J., concurring in part, concurring in the judgment in part, and dissenting in part) (internal quotation marks omitted). Finally, Justices Scalia and Thomas reiterated their view that the voters' political gerrymandering claims were nonjusticiable. See id. at 511 (Scalia, J., concurring in the judgment in part and dissenting in part).

         In its consideration of the reapportionment issue, the Court has acknowledged that the appropriate analysis is grounded not only in its jurisprudence of equal protection, but also its jurisprudence of associational rights under the First Amendment. The gravamen of an equal protection claim is that a state has burdened artificially a voter's ballot so that it has less weight than another person's vote. A year after Reynolds, the Court again articulated this concept in Fortson v. Dorsey, 379 U.S. 433 (1965), when it evaluated whether multimember legislative districts had a constitutionally impermissible impact on the weight of African-American voters. There, the Court reiterated its concern that voters' ability to participate in the electoral process was unequal. While declining to hold multimember districts were unconstitutional per se, it noted that “designedly or otherwise, a multi-member constituency apportionment scheme, under the circumstances of a particular case, [might] operate to minimize or cancel out the voting strength of racial or political elements of the voting population.” Id. at 439. Again, in White v. Register, 412 U.S. 755 (1973), the Court held that certain multimember districts were violative of the Constitution when the plaintiffs produced evidence that an election was not “equally open to participation by the group in question-that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice.” Id. at 766 (emphasis added). In Gaffney, 412 U.S. at 754, the Court again noted that apportionment plans that “invidiously minimize[]” the voting strength of “political groups” “may be vulnerable” to constitutional challenges.

         In these cases, the Court's emphasis on ensuring that an individual's vote receive the same weight as every other person's vote necessarily implicates that individual's associational rights. The Court previously has observed the link between the right to vote and the right to associate in its ballot-access cases. One of the foundational ballot-access cases, Anderson v. Celebrezze, 460 U.S. 780 (1983), involved a challenge to a state law which required independent candidates to file their nominating petitions seventy-five days before the primary election in order to qualify for the general election ballot. Id. at 804-06. The Court observed that the statute in question implicated both the “right to vote” and “freedom of association”: “Each provision of these schemes, whether it governs the registration and qualifications of voters, the selection and eligibility of candidates, or the voting process itself, inevitably affects-at least to some degree-the individual's right to vote and his right to associate with others for political ends.” Id. at 788 (emphasis added).

         The Court then outlined the analysis a court must undertake in considering a challenge to a state's election law:

It must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional.

Id. at 789. Applying these steps, the Court determined that the early filing deadline at issue in Anderson placed a burden on independent parties and that “it is especially difficult for the State to justify a restriction that limits political participation by an identifiable political group.” Id. at 793. After considering the state's interests in keeping voters well-educated about the candidates, being fair to the parties who hold primaries, and ensuring political stability, the Court held that there was an unconstitutional burden on “the interests of the voters who chose to associate together to express their support for [an independent's] candidacy and the views he espoused.” Id. at 806 (emphasis added). The Court also noted that, in reaching its conclusion, it was relying “directly on the First and Fourteenth Amendments” and was “not engag[ing] in a separate Equal Protection Clause analysis.” Id. at 786-87 n.7. It had relied, however,

on the analysis in a number of our prior election cases resting on the Equal Protection Clause of the Fourteenth Amendment. These cases, applying the “fundamental rights” strand of equal protection analysis, have identified the First and Fourteenth Amendment rights implicated by restrictions on the eligibility of voters and candidates, and have considered the degree to which the State's restrictions further legitimate state interests.

Id.

         Since Anderson, the Court has continued to assess election laws through the lens of the First and Fourteenth Amendments, without explicit reference to the Equal Protection Clause. In evaluating election laws, the Court employs a multi-step process that looks at the totality of the circumstances:

When deciding whether a state election law violates First and Fourteenth Amendment associational rights, we weigh the character and magnitude of the burden the State's rule imposes on those rights against the interests the State contends justify that burden, and consider the extent to which the State's concerns make the burden necessary. Regulations imposing severe burdens on plaintiffs' rights must be narrowly tailored and advance a compelling state interest. Lesser burdens, however, trigger less exacting review, and a State's important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions. No bright line separates permissible election-related regulation from unconstitutional infringements on First Amendment freedoms.

Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358-59 (1997) (internal quotation marks omitted) (citations omitted).

         Nevertheless, the close relationship between equal protection and associational rights is clear. For example, in Williams v. Rhodes, 393 U.S. 23 (1968), one of the equal protection cases relied upon in Anderson, the Court considered the constitutionality of a law which required new political parties to obtain the signatures of electors equaling 15% of the number of ballots cast in the preceding gubernatorial election. It stated:

[W]e have … held many times that “invidious” distinctions cannot be enacted without a violation of the Equal Protection Clause. In determining whether or not a state law violates the Equal Protection Clause, we must consider the facts and circumstances behind the law, the interests which the State claims to be protecting, and the interests of those who are disadvantaged by the classification. In the present situation the state laws place burdens on two different, although overlapping, kinds of rights-the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively. Both of these rights, of course, rank among our most precious freedoms. We have repeatedly held that freedom of association is protected by the First Amendment. And of course this freedom protected against federal encroachment by the First Amendment is entitled under the Fourteenth Amendment to the same protection from infringement by the States. Similarly we have said with reference to the right to vote: “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.”

Id. at 30-31 (emphasis added) (citations omitted). The Court held that the law in question was unconstitutionally burdensome on new political parties. Id. at 34.[165]

         We therefore believe that there is a solid basis for considering the associational aspect of voting in assessing the gravamen of the harm allegedly suffered by the plaintiffs. Indeed, in this case, the associational harm is especially important to the analysis because the testimony of the defendants' witnesses as well as the plaintiffs' demonstrate that, given the legislative practice and custom of Wisconsin, legislative action is controlled, as a practical matter, solely by the majority caucus. In such a circumstance, when the state places an artificial burden on the ability of voters of a certain political persuasion to form a legislative majority, it necessarily diminishes the weight of the vote of each of those voters when compared to the votes of individuals favoring another view. The burdened voter simply has a diminished or even no opportunity to effect a legislative majority. That voter is, in essence, an unequal participant in the decisions of the body politic.

         On the facts presented in past cases, some members of the Supreme Court have expressed the view that judicial enforcement of the principle that each voter has a right to have his vote treated equally must be limited to situations where the dilution is based on classifications such as race and population. These reservations have been grounded in the concern that distinguishing between legitimate and illegitimate political motivations is not a task to be undertaken by judges. In their view, moreover, there are insurmountable problems in formulating manageable standards. See Bandemer, 478 U.S. at 147 (O'Connor, J., concurring in the judgment); Vieth, 541 U.S. at 288 (plurality opinion). Other Justices have not accepted such a limitation. See, e.g., Vieth, 541 U.S. at 306-17 (Kennedy, J., concurring in the judgment). As we shall discuss at greater length later, however, this case does not present these conundrums. We are not presented with the problem of distinguishing between permissible and impermissible political motivations. We have a far more straight-forward situation. The plaintiffs have established, on this record, that the defendants intended and accomplished an entrenchment of the Republican Party likely to endure for the entire decennial period. They did so when the legitimate redistricting considerations neither required nor warranted the implementation of such a plan.

         IV

         ELEMENTS OF THE CAUSE OF ACTION

         As our description of the case law reveals, the law governing political gerrymandering, still in its incipient stages, is in a state of considerable flux. We must, however, accept that situation and seek in these authorities a solution to the case before us. Therefore, while not discounting the difficulty of the task before us, we now identify the guideposts available to us.

         We begin with a principle that is beyond dispute. State legislative apportionment is the prerogative and therefore a duty of the political branches of the state government. We must “recognize[] the delicacy of intruding on this most political of legislative functions.” Bandemer, 478 U.S. at 143.[166] We also know that we cannot rely on the simple finding “that political classifications were applied.” Vieth, 541 U.S. at 307 (Kennedy, J., concurring in the judgment). Similarly, “the mere lack of proportional representation will not be sufficient to prove unconstitutional discrimination.” Bandemer, 478 U.S. at 132 (plurality opinion).

         It is clear that the First Amendment and the Equal Protection Clause protect a citizen against state discrimination as to the weight of his or her vote when that discrimination is based on the political preferences of the voter.[167] This principle applies not simply to disparities in raw population, but also to other aspects of districting that “operate to minimize or cancel out the voting strength of racial or political elements of the voting population.” Fortson, 379 U.S. at 439. Specifically, apportionment plans that “invidiously minimize[]” the voting strength of “political groups” “may be vulnerable” to constitutional challenges, Gaffney, 412 U.S. at 754, because “each political group in a State should have the same chance to elect representatives of its choice as any other political group, ” Bandemer, 478 U.S. at 124.

         We conclude, therefore, that the First Amendment and the Equal Protection clause prohibit a redistricting scheme which (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.

         A. Discriminatory Intent or Purpose

         The Supreme Court has stressed the “basic equal protection principle that the invidious quality of a law … must ultimately be traced to a discriminatory purpose.” Washington v. Davis, 426 U.S. 229, 240 (1976); see also Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977) (“Proof of … discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.”). A legislature's discriminatory intent also factors into a First Amendment analysis. Timmons, 520 U.S. at 358-59 (considering whether a state has imposed “reasonable, nondiscriminatory restrictions” on First Amendment associational rights (emphasis added)); see also Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 452 (2008) (same); Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Where the claim is invidious discrimination in contravention of the First … Amendment[], our decisions make clear that the plaintiff must plead and prove that the defendant acted with discriminatory purpose.”).

         The Court explicitly has held that equal protection challenges to redistricting plans require a showing of discriminatory purpose or intent. See Rogers, 458 U.S. at 617 (explaining that cases involving allegations of vote-dilution on the basis of race “are … subject to the standard of proof generally applicable to Equal Protection Clause cases” including a showing of a “‘a racially discriminatory purpose'” (quoting Washington, 426 U.S. at 240)). This requirement applies with equal force to cases involving political gerrymanders. See Bandemer, 478 U.S. at 127 (stating that plaintiffs who bring a claim of partisan gerrymandering “[a]re required to prove … intentional discrimination against an identifiable political group” (emphasis added)).

         When considering the level of partisan intent necessary to establish a political-gerrymandering claim, our first task is to determine what kind of partisan intent offends the Constitution. The plurality in Bandemer simply required a plaintiff to show any level of “intentional discrimination against an identifiable political group.” 478 U.S. at 127; see also Vieth, 541 U.S. at 284 (plurality opinion) (describing the Bandemer plurality's standards as “mere intent to disadvantage the plaintiff's group”). It suggested that “[a]s long as redistricting is done by a legislature, it should not be very difficult to prove that the likely political consequences of the reapportionment were intended.” Bandemer, 478 U.S. at 129. A majority of the Court in Vieth, however, rejected the Bandemer plurality's test, which included this standard of intent. Vieth, 541 U.S. at 284 (plurality opinion) (“declin[ing] to affirm [the Bandemer test] as a constitutional requirement”); id. at 308 (Kennedy, J., concurring in the judgment) (noting that “[t]he plurality demonstrates the shortcomings of the other standards that have been considered to date” and specifically identifying “the standards proposed in Davis v. Bandemer”).

         At the outset, we note that the Court recently has acknowledged that the constitutionality of partisan favoritism in redistricting is an open question. See Harris v. Arizona Indep. Redistricting Comm'n, 136 S.Ct. 1301, 1310 (2016) (“assuming, without deciding, that partisanship is an illegitimate redistricting factor”). Nevertheless, we know that legislatures may employ some political considerations when making redistricting decisions; considerations such as achieving “political fairness, ” Gaffney, 412 U.S. at 752, and “avoiding contests between incumbent[s], ” Bush v. Vera, 517 U.S. 952, 964 (1996) (internal quotation marks omitted) (quoting Karcher v. Daggett, 462 U.S. 725, 740 (1983)) (alteration in original), are permissible.

         That some political considerations may intrude into the redistricting process without running afoul of the Constitution, however, does not answer the question whether partisan favoritism is permissible. The Court's members appear to acknowledge that some level of partisanship is permissible, or at least inevitable, in redistricting legislation. The plurality in Vieth, for instance, noted that “partisan districting is a lawful and common practice.” 541 U.S. at 286. In his opinion, Justice Kennedy observed that political classifications are “generally permissible.” Id. at 307 (Kennedy, J., concurring in the judgment). Justices Souter and Breyer, dissenting in Vieth, expressed the view that partisan favoritism in some form was inevitable, if not necessarily desirable. See Id. at 344 (Souter, J., dissenting) (“[S]ome intent to gain political advantage is inescapable whenever political bodies devise a district plan ….”); id. at 360 (Breyer, J., dissenting) (“[T]raditional or historically based boundaries are not, and should not be, ‘politics free.' … They … represent an uneasy truce, sanctioned by tradition, among different parties seeking political advantage.” (emphasis added)).

         Other justices, however, have not acknowledged that political affiliation is “an appropriate standard for excluding voters from a congressional district.” Id. at 325 (Stevens, J., dissenting). Even so, these justices have proposed tests that “cover only a few meritorious claims” and “preclude extreme abuses” of the districting process. Id. at 339.[168]

         As a starting point, it is safe to say that this concept of abuse of power seems at the core of the Court's approach to partisan gerrymandering. In Arizona State Legislature v. Arizona Independent Redistricting Commission, 135 S.Ct. 2652, 2658 (2015), the Court defined partisan gerrymandering as “the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power.” Justice Kennedy noted in Vieth that a claim of partisan gerrymandering “must rest … on a conclusion that [political] classifications … were applied in an invidious manner or in a way unrelated to any legitimate legislative objective.” 541 U.S. at 307 (Kennedy, J., concurring in the judgment) (emphasis added). The plurality, as well, acknowledged that “an excessive injection of politics is unlawful.” Id. at 293 (plurality opinion). And Justice Breyer in dissent observed that there was “at least one circumstance where use of purely political boundary-drawing factors can amount to a serious, and remediable, abuse, namely, the unjustified use of political factors to entrench a minority in power.” Id. at 360 (Breyer, J., dissenting) (emphasis in original).[169]

         When “acceptable”-or at least tolerable-crosses a line to become “excessive, ” however, remains unclear. Moreover, as Justice Kennedy warns, a standard of excessiveness has its drawbacks:

[C]ourts must be cautious about adopting a standard that turns on whether the partisan interests in the redistricting process were excessive. Excessiveness is not easily determined. Consider these apportionment schemes: In one State, Party X controls the apportionment process and draws the lines so it captures every congressional seat. In three other States, Party Y controls the apportionment process. It is not so blatant or egregious, but proceeds by a more subtle effort, capturing less than all the seats in each State. Still, the total effect of party Y's effort is to capture more new seats than Party X captured. Party X's gerrymander was more egregious. Party Y's gerrymander was more subtle. In my view, however, each is culpable.

Id. at 316 (Kennedy, J., concurring in the judgment).

         “Excessiveness” does not need to be defined simply in terms of raw seat tallies. The danger with extreme partisan gerrymanders is that they entrench a political party in power, making that party-and therefore the state government-impervious to the interests of citizens affiliated with other political parties. This imperviousness may be achieved by manipulating a map to achieve a supermajority. But it also may be achieved by “lock[ing]-in” or creating the requisite “safe seats” such that legislators “elected from such safe districts need not worry much about the possibility of shifting majorities” and “have little reason to be responsive to the political minorities within their district.” LULAC, 548 at 470-71 (Stevens, J., concurring in part and dissenting in part).

         When a party is “locked-in” through the intentional manipulation of legislative districts, “representational harms” to those affiliated with the “out”-party necessarily ensue. See Id. at 470. Specifically, “in addition to the possibility that a representative may believe her job is only to represent the interests of a dominant constituency, a representative may feel more beholden to the cartographers who drew her district than to the constituents who live there.” Id. The result is a system that assigns different weights to the votes of citizens and accords to those citizens different levels of legislative responsiveness based on the party with which they associate. See Reynolds, 377 U.S. at 565.

         Whatever gray may span the area between acceptable and excessive, an intent to entrench a political party in power signals an excessive injection of politics into the redistricting process that impinges on the representational rights of those associated with the party out of power. Such a showing, therefore, satisfies the intent requirement for an equal protection violation.[170]

         A “‘discriminatory purpose' … implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker … selected or reaffirmed a particular course of action at least in part, ‘because of, ' not merely ‘in spite of, ' its adverse effects upon an identifiable group.” Pers. Admin. of Mass. v. Feeney, 442 U.S. 256, 279 (1979); see also Chavez v. Ill. State Police, 251 F.3d 612, 645 (7th Cir. 2001) (quoting same). The plaintiffs therefore must show that the intent to entrench the Republican Party in power was “a motivating factor in the decision.” Arlington Heights, 429 U.S. at 265-66. It need not be the “sole[]” intent or even “the ‘dominant' or ‘primary' one.” Id. at 265.[171] Indeed, it rarely can “be said that a legislature or administrative body operating under a broad mandate made a decision motivated by a single concern.” Id. This is certainly true in redistricting legislation where the Court has identified “traditional districting principles such as compactness, contiguity, and respect for political subdivisions” that legitimately may inform drafters in the drawing of district lines. Shaw v. Reno, 509 U.S. 630, 647 (1993).

         Relying on traditional districting principles, defendants propose a novel rule: a redistricting plan that “is consistent with, and not a radical departure from, prior plans with respect to traditional districting principles” cannot, as a matter of law, evince an unconstitutional intent.[172] In other words, compliance with traditional districting principles necessarily creates a constitutional “safe harbor” for state legislatures.

         The defendants' approach finds no support in the law. It is entirely possible to conform to legitimate redistricting purposes but still violate the Fourteenth Amendment because the discriminatory action is an operative factor in choosing the plan. Indeed, the Court rejected a similar claim in Fortson: while acknowledging that there was no “mathematical disparity” that violated the principle of “one-person, one-vote, ” it did not rule out the possibility that a districting plan, which included multimember districts, could “operate to minimize or cancel out the voting strength of racial or political elements of the voting population.” 379 U.S. at 439. Similarly, in Gaffney, the Court observed that “[s]tate legislative districts may be equal or substantially equal in population and still be vulnerable under the Fourteenth Amendment.” 412 U.S. at 751.

         Moreover, the Court has made clear that “traditional districting principles” are not synonymous with equal protection requirements. Instead, they “are objective factors that may serve to defeat a claim that a district has been gerrymandered.” Shaw, 509 U.S. at 647 (citing Gaffney, 412 U.S. at 752 n.18). In other words, they are constitutionally permissible, but not “constitutionally required.” Id. Individual Justices also have noted that a map's compliance with traditional districting principles does not necessarily speak to whether a map constitutes a partisan gerrymander:

[E]ven those criteria that might seem promising at the outset (e.g., contiguity and compactness) are not altogether sound as independent judicial standards for measuring a burden on representational rights. They cannot promise political neutrality when used as the basis for relief.

Vieth, 541 U.S. at 308 (Kennedy, J., concurring in the judgment); see also Id. at 366 (Breyer, J., dissenting) (opining that a map where “no radical departure from traditional districting criteria is alleged” but an unjustified partisan result occurs in two elections “would be sufficient to support a claim of unconstitutional entrenchment”). Highly sophisticated mapping software now allows lawmakers to pursue partisan advantage without sacrificing compliance with traditional districting criteria. A map that appears congruent and compact to the naked eye may in fact be an intentional and highly effective partisan gerrymander. When reviewing intent, therefore, we cannot simply ask whether a plan complied with traditional districting principles. Therefore, the defendants' contention-that, having adhered to traditional districting principles, they have satisfied the requirements of equal protection-is without merit.[173]

         We therefore must confront the question of how we are to discern whether, in creating the map that became Act 43, the drafters employed an impermissible intent- cutting out for the longterm those of a particular political affiliation. In assuming this task, we are mindful that “[i]nquiries into congressional [and other legislative bodies'] motives or purposes are a hazardous matter.” United States v. O'Brien, 391 U.S. 367, 383 (1968). When the issue is one of “mixed intent” as it is here, “[e]valuating the legality of acts … can be complex … . When the actor is a legislature and the act is a composite of manifold choices, the task can be even more daunting.” LULAC, 548 U.S. at 418 (opinion of Kennedy, J.). “Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available, ” including (1) “[t]he impact of the official action” as “an important starting point”; (2) “the historical background of the decision”; (3) “[t]he specific sequence of events leading up to the challenged decision”; (4) “[d]epartures from the normal procedural sequence”; (5) “legislative or administrative history …, especially … contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports.” Arlington Heights, 429 U.S. at 266-68; see also Miller, 515 U.S. at 913-14.

         However, discerning the intent of a legislative body can be less daunting in some cases than in others. In some cases, the legislature is aware that a distinction is constitutionally impermissible and surreptitiously attempts to create legislation on the basis of that distinction. These cases require that we engage in a careful inquiry of circumstantial evidence, because the drafters' intent often is hidden from the casual observer.[174] In other cases, a legislature seems unaware that a distinction is constitutionally impermissible and deliberately enacts legislation on the basis of that distinction. This situation typically arises in periods before the Supreme Court has illuminated the full meaning of a constitutional right.[175] In these cases, courts are able to discern the legislature's intent more easily and less intrusively because the evidence is far more direct.

         This case falls more in the latter category. The Court never has invalidated a redistricting plan on the ground of partisan gerrymandering, and the Court's recent pronouncements have caused some district courts to question the viability of the cause of action.[176] Here, the record demonstrates that, although the drafters were aware of some constitutional limits on the degree to which they could neutralize the political power of the opposition party, those limits were not firmly established.

         We therefore turn to the sequence of events that led to the enactment of Act 43 to discern whether one purpose behind the legislation was to entrench a political party in power.

         3.

         a. Evidence of intent

         The evidence at trial establishes that one purpose of Act 43 was to secure the Republican Party's control of the state legislature for the decennial period. The drafters' concern with the durable partisan complexion of the new Assembly map was present from the outset of the legislative process. Ottman, Foltz, [177] and Handrick began drafting the map that would become Act 43 in April 2011.[178] One of their first orders of business was to develop a composite partisan score that accurately reflected the political makeup of population units, which would allow them to assess the partisan make-up of the new districts.[179] When they came up with a composite of “all statewide races from [20]04 to 2010” that “seem[ed] to work well, ” they sent it to Professor Gaddie.[180]

         Professor Gaddie, [181] the “advisor on the appropriate racial and/or political make-up of legislative … districts, ”[182] “buil[t] a regression model … to test the partisan makeup and performance of districts as they might be configured in different ways.”[183]Professor Gaddie then tested the drafters' composite measure against his model and confirmed that their measure was “almost a perfect proxy for the open seat vote, and the best proxy you'll come up with.”[184] Professor Mayer testified that the drafters' composite measure correlated very strongly with his own measure of partisanship, which led him to conclude that “they knew exactly what they were doing, that they had a very accurate estimate of the underlying partisanship of the Act 43 maps.”[185]

         Once Ottman, Foltz, and Handrick received Professor Gaddie's imprimatur on their composite measure, they employed this measure “to assess the partisan impact of the map[s] that [they] drew.”[186] We find that the maps the drafters generated, as well as the statistical comparisons made of the various maps, reveal that a focal point of the drafters' efforts was a map that would solidify Republican control. The maps often bore names that reflected the level of partisan advantage achieved. For instance, maps labeled “aggressive” referenced “a more aggressive map with regard to GOP leaning.”[187] When producing these more advantageous maps, the drafters did not abandon traditional districting criteria;[188] to the contrary, the maps complied with traditional districting criteria while also ensuring a significant partisan advantage.

         The drafters also created spreadsheets that collected the partisan scores, by district, for each of the map alternatives. For each spreadsheet, there was a corresponding table that listed the number of “Safe” Republican seats, “Lean” Republican seats, “Swing” seats, “Safe” Democratic seats, and “Lean” Democratic seats; these figures also were compared to the number of seats in each category under the Current Map, the map drawn by the court in Baumgart v. Wendelberger, Nos. 01-C-0121 & 02-C-0366, 2002 WL 34127471 (E.D. Wis. May 30, 2002), amended by 2002 WL 34127473 (E.D. Wis. July 11, 2002).[189]

         The process of drafting and evaluating these alternative district maps spanned several months. In April, the drafters produced a document comparing the partisan performance of the Current Map to two early draft maps: Joe's Basemap Basic and Joe's Basemap Assertive.[190] Under the Current Map, the drafters anticipated that the Republicans would win 49[191] Assembly seats.[192] This number increased to 52 under the Joe's Basemap Basic map and to 56 under the Joe's Basemap Assertive map.[193] The number of safe and leaning Republican seats increased from 40 under the Current Map to 45 under the Joe's Basemap Basic map and 49 under the Joe's Basemap Assertive map; the number of swing seats decreased from 19 to 14 to 12.[194] The number of safe and leaning Democratic seats, however, remained roughly the same under all three maps, hovering between 38 and 40.[195]

         The drafters prepared and evaluated the partisan performance of at least another six statewide alternative maps.[196] Each of these maps improved upon the anticipated pro-Republican advantage generated in the initial two draft plans. The total number of expected Republican seats now ranged between 57 and 60, and the number of swing seats was diminished to between 6 and 11.[197] The number of Democratic seats again remained about the same under each draft map.[198]

         The drafters sent their completed draft maps to Professor Gaddie, who created a visual “S” curve for each map.[199] These “S” curves show how each map would operate within an array of electoral outcomes.[200] To produce the “S” curves, Professor Gaddie calculated the expected partisan vote shares for each district.[201] He then shifted the vote share of each district ten points in either direction, from 40% to 60%, and assigned a color to districts that “lean[ed]” towards, or were “safe” seats for that party.[202] Professor Gaddie explained that his analysis “was designed to tease out a potential estimated vote” under a range of electoral scenarios, when either “the Democrats have a good year” or “the Republicans have a good year.”[203] At bottom, the “S” curves-at least some of which were printed in large format and kept in the map room-allowed a non-statistician, by mere visual inspection, to assess the partisan performance of a particular map under all likely electoral scenarios. On one occasion, Professor Gaddie showed the “S” curves to Senator Fitzgerald and explained to the Senator “how to interpret” them.[204]

         Over several days in early June, the drafters presented a selection of regional maps drawn from their statewide drafts, approximately three to four per region, to the Republican leadership. Along with these regional alternatives, the leadership “saw the partisan scores for the maps that [the drafters] presented to them in those alternatives.”[205] Foltz testified during his deposition that although he could not recall a particular example, he was sure that he was asked by the leadership about the partisan performance of the various regional options.[206]

         Following this meeting, the drafters amalgamated the regional alternatives chosen by the leadership. Foltz testified that “the draft map called team map emerged as a result of the … leadership's choices at those meetings.”[207] Under the Team Map, which was also referred to as the “Final Map, ”[208] the Republicans could expect to win 59 Assembly seats, with 38 safe Republican seats, 14 leaning Republican, 10 swing, 4 leaning Democratic, and 33 safe Democratic seats.[209] In the Tale of the Tape, the drafters compared the partisan performance of the Team Map directly to the Current Map on each of these criteria.[210] They highlighted specifically that under the Current Map, “49 seats are 50% or better, ” but under the Team Map, “59 Assembly seats are 50% or better.”[211]

         The Team Map underwent even more intense partisan scrutiny in a document identified as “summary.xlsx.”[212] The drafters divided the new Team Map districts into six categories of partisan performance, listing beside each district its “new incumbent” and its Republican vote share under the Current Map and the Team Map; the change in Republican vote share was the district's “improvement” under the new plan.[213] The drafters considered five districts to be “Statistical Pick Up[s], ” meaning they were currently held by a Democratic incumbent but “move[d] ¶ 55% or better” in Republican vote share under the new Team Map.[214] Fourteen districts were grouped under the heading “GOP seats strengthened a lot, ” meaning they were “[c]urrently held GOP seats that start[ed] at 55% or below that improve[d] by at least 1%” in Republican vote share.[215] Eleven districts were “GOP seats strengthened a little, ” meaning they “improve[d] less than 1%.”[216] Only three districts were labeled “GOP seats weakened a little, ” meaning they had “start[ed] at 55% or below” but “decline[d]” slightly in Republican vote share.[217] Another three districts were “GOP seats likely lost, ” meaning they had “drop[ped] below 45%” Republican vote share under the Team Map.[218]Finally, the drafters noted four districts where Democrats were “weakened, ” which were districts with “45% or better” Democratic vote share “that bec[a]me more GOP” under the Team Map.[219] The drafters also identified twenty Republican Assembly members who enjoyed sufficiently comfortable partisan scores such that they could become “GOP donors to the team.”[220] These were members of the Assembly who had partisan scores of 55% or greater and, therefore, could spread their partisan voting strength to politically weaker colleagues.[221]

         The Team Map also was sent to Professor Gaddie. The “S” curve demonstrates that this map would allow the Republicans to maintain a comfortable majority under likely voting scenarios; their statewide vote share could fall to 48%, and they still would preserve a 54 seat majority in the Assembly. The Democrats, by contrast, would need 54% of the statewide vote to capture a simple majority of Assembly seats.[222]

         Once the map had been finalized, Foltz presented each Republican member of the Assembly with information on his or her new district. These memos provided a “[c]omparison of [k]ey [r]aces” in the new districts compared to the old.[223] Specifically, the memoranda detailed what percentage of the population in the old and new districts voted for Republican candidates in representative statewide and national elections held since 2004. Importantly, the memoranda did not provide the individual legislators with any information about contiguity, compactness, or core population.

         Additionally, Ottman made a presentation to the Republican caucus that highlighted the long-term effects of Act 43, as reflected in his prepared notes: “The maps we pass will determine who's here 10 years from now, ” and “[w]e have an opportunity and an obligation to draw these maps that Republicans haven't had in decades.”[224]

         In sum, from the outset of the redistricting process, the drafters sought to understand the partisan effects of the maps they were drawing. They designed a measure of partisanship and confirmed the accuracy of this measure with Professor Gaddie. They used this measure to evaluate regional and statewide maps that they drew. They labeled their maps by reference to their partisanship scores, they evaluated partisan outcomes of the maps, and they compared the partisanship scores and partisan outcomes of the various maps. When they completed a statewide map, they submitted it to Professor Gaddie to assess the fortitude of the partisan design in the wake of various electoral outcomes.

         The map that emerged from this process reduced markedly the possibility that the Democrats could regain control of the Assembly even with a majority of the statewide vote. The map that would become Act 43 had a pickup of 10 Assembly seats compared to the Current Map.[225] As well, if their statewide vote fell below 48%, the design of Act 43 ensured that the Republicans would maintain a comfortable majority.[226]

         Finally, it is clear that the drafters were concerned with, and convinced of, the durability of their plan. Professor Gaddie confirmed the staying power of the Republican majority under the plan, and Ottman emphasized to the Republican caucus the long-term consequences of enacting the plan.[227]

         We conclude, therefore, that the evidence establishes 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, in other words to entrench the Republican Party in power.

         b. Alleged shortcomings in the evidence

         The defendants point to the miscalculation of the composite measure, to limitations of the composite measure itself, and to the drafters' lack of reliance on Professor Gaddie's analysis as evidence that they did not have the requisite intent to subjugate the voting strength of Democrats. The defendants first note that the drafters' partisan score “was not even correct.”[228] Because of an error in the data for the 2006 Governor's race-one of the components for their composite measure-the drafters' numbers were skewed, and the resulting partisan scores were more pro-Republican than if the scores had been calculated with the correct data.[229] However, as the plaintiffs note, these errors may diminish the reliability of the composite measure, but they are irrelevant to the drafters' intent.[230]

         The defendants also disparage the notion that “the partisan scores were a crystal ball with predictive powers ensuring that Act 43 would lock Democrats out from seats that leaned Republican.”[231] They contend that their composite did not have a “forward-looking component, ” but was simply “an average of past elections applied to the new districts.”[232] We reject as not worthy of belief the assertion that the drafters would have expended the time to calculate a composite score for each district on the statewide maps simply to gain an historical understanding of voting behavior. Their measure was only useful to them-and the exercise of calculating the composite was only worth the effort-if it helped them assess how Republican representatives in the newly created districts likely would fare in future elections.

         Moreover, each completed map was submitted to Professor Gaddie, who then generated an “S” curve. The “S” curves were designed to discern “the political potential of the district.”[233] Professor Gaddie explained that, when he used the term “potential, ” he meant “[i]f you had an election in the future, how might it turn out. So when I say potential … this is our best estimate of what a non-incumbent election would look like given a particular set of circumstances, depending on whether one party is stronger or weaker.”[234]

         According to the defendants, however, Professor Gaddie's “S” curves are irrelevant to the issue of intent because the drafters “didn't look at them much.”[235] We cannot accept that estimation of the importance of Professor Gaddie's work to the drafters. The record makes clear that the drafters sent Professor Gaddie their completed maps for which he produced “S” curves. Both Ottman and Foltz testified that, when the “S” curves were generated, Professor Gaddie provided an explanation of what they showed.[236] That Ottman may not have used the “S” curves much once they were generated, [237] or that Foltz was not able to explain their full significance at trial, five years later, [238] does not diminish the fact that the drafters sought, and received, Professor Gaddie's expert analysis on how each map would behave under the range of likely electoral scenarios.[239]

         Finally, the defendants contend that the partisan intent shown by the evidence in this case cannot be considered invidious because Act 43's districts are consistent with traditional districting principles. However, as we have explained earlier, a plan that adheres to those principles can violate the Equal Protection Clause. Here, the evidence shows that one purpose of enacting Act 43 was to secure Republican control of the Wisconsin Assembly. In particular, the history of Act 43 reveals that the drafters created several alternatives that resulted in a less severe partisan outcome. Of the maps presented to them, the Republican leadership opted for a map that significantly increased the number of Republican-leaning districts compared to the Current Map. Further, the memos prepared for the Assembly members informed them whether the district number had changed, whether adjustment to the district population was necessary based on the census numbers, and provided a “[c]omparison of [k]ey [r]aces” in the new districts compared to the old, but provided little information regarding traditional districting factors.[240]

         These facts, in tandem with the overwhelming number of reports and memoranda addressing the partisan outcomes of the various maps, lead us to conclude that, although Act 43 complied with traditional redistricting principles, it nevertheless had as one of its objectives entrenching the Republicans' control of the Assembly.[241]

         B. Discriminatory Effect of Act 43

         Act 43 also achieved the intended effect: it secured for Republicans a lasting Assembly majority. It did so by allocating votes among the newly created districts in such a way that, in any likely electoral scenario, the number of Republican seats would not drop below 50%. Through the combination of the actual election results for 2012 and 2014, the swing analyses performed by Professors Gaddie and Mayer, as well as the plaintiffs' proposed measure of asymmetry, the efficiency gap (or “EG”), the plaintiffs have “show[n] a burden, as measured by a reliable standard, on [their] representational rights.” LULAC, 548 U.S. at 418 (opinion of Kennedy, J.).

         1.

         It is clear that the drafters got what they intended to get. There is no question that Act 43 was designed to make it more difficult for Democrats, compared to Republicans, to translate their votes into seats. In the Tale of the Tape, the drafters compared the partisan performance of the Team Map directly to the Current Map.[242]Where the Current Map had only “49 [Assembly] seats” that were “50% or better” for Republicans, the Team Map increased that number by ten so that “59 Assembly seats” were designated as “50% or better” for Republicans.[243] Moreover, under the Team Map that became Act 43, Republicans expected the following seat distribution: 38 safe Republican seats, 14 leaning Republican, 10 swing, 4 leaning Democratic, and 33 safe Democratic seats.[244]

         Professor Mayer explained the significance of this distribution at trial.[245] Using the baseline partisan measure that he used to create his Demonstration Plan, [246] Professor Mayer created a histogram that graphed the predicted percentage of Republican vote of each district (by 5% increments) on the x axis, and the number of districts that fell into each 5% increment on the y axis.[247] The graph reveals that Act 43 includes 42 districts with predicted Republican vote percentages of between 50 and 60%; only seventeen districts have predicted Democratic vote percentages of between 50 and 60%.[248] This demonstrates that, under Act 43, Republican voters are distributed over a larger number of districts so that they can secure a greater number of seats; in short, “Republicans are distributed in a much more efficient manner than Democrats.”[249] Professor Mayer's graph also reveals that there are only 15 districts with a predicted Republican vote percentage of 60% or greater; this is compared to 25 districts that have a predicted Democratic vote percentage of 60% or greater. In other words, Democrats have been packed into “safe” Democratic districts.

         The 2012 and 2014 election results reveal that the drafters' design in distributing Republican voters to secure a legislative majority was, in fact, a success. In 2012, Republicans garnered 48.6% of the vote, but secured 60 seats in the Assembly.[250] In 2014, Republicans increased their vote percentage to 52 and secured 63 Assembly seats.[251]

         Moreover, Professors Gaddie and Mayer testified that, consistent with what actually occurred in 2012 and 2014, under any likely electoral scenario, the Republicans would maintain a legislative majority. After Professors Gaddie and Mayer developed their regression models to measure baseline partisanship, [252] each conducted a separate swing analysis to demonstrate this outcome. “What a swing analysis does, ” Professor Mayer explained, “is ask the question … what might happen” under different electoral conditions.[253] To determine this, “the statewide vote percentage” is altered by a fixed amount, typically in one-percentage-point increments, across all districts.[254] “It's a way of, generally speaking, estimating what is a plausible outcome given a change ...


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