(Slip Opinion)
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` OCTOBER TERM, 2015
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`Syllabus
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`1
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` NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
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` being done in connection with this case, at the time the opinion is issued.
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` The syllabus constitutes no part of the opinion of the Court but has been
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` prepared by the Reporter of Decisions for the convenience of the reader.
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` See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
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`SUPREME COURT OF THE UNITED STATES
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` Syllabus
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` HARRIS ET AL. v. ARIZONA INDEPENDENT
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`REDISTRICTING COMMISSION ET AL.
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`
`
`ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
`
`THE DISTRICT OF ARIZONA
` No. 14–232. Argued December 8, 2015—Decided April 20, 2016
`
`After the 2010 census, Arizona’s independent redistricting commission
`(Commission), comprising two Republicans, two Democrats, and one
`Independent, redrew Arizona’s legislative districts, with guidance
`from legal counsel, mapping specialists, a statistician, and a Voting
`Rights Act specialist. The initial plan had a maximum population
`deviation from absolute equality of districts of 4.07%, but the Com-
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`mission adopted a revised plan with an 8.8% deviation on a 3-to-2
`vote, with the Republican members dissenting. After the Depart-
`ment of Justice approved the revised plan as consistent with the Vot-
`ing Rights Act, appellants filed suit, claiming that the plan’s popula-
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`tion variations were inconsistent with the Fourteenth Amendment.
`A three-judge Federal District Court entered judgment for the Com-
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`mission, concluding that the “deviations were primarily a result of
`good-faith efforts to comply with the Voting Rights Act . . . even
`though partisanship played some role.”
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`Held: The District Court did not err in upholding Arizona’s redistricting
`plan. Pp. 3–11.
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`(a) The Fourteenth Amendment’s Equal Protection Clause requires
`States to “make an honest and good faith effort to construct [legisla-
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`tive] districts . . . as nearly of equal population as is practicable,”
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`Reynolds v. Sims, 377 U. S. 533, 577, but mathematical perfection is
`not required. Deviations may be justified by “legitimate considera-
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`tions,” id., at 579, including “traditional districting principles such as
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`compactness [and] contiguity,” Shaw v. Reno, 509 U. S. 630, 647, as
`well as a state interest in maintaining the integrity of political subdi-
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`visions, Mahan v. Howell, 410 U. S. 315, 328, a competitive balance
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`among political parties, Gaffney v. Cummings, 412 U. S. 735, 752,
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`HARRIS v. ARIZONA INDEPENDENT
`REDISTRICTING COMM’N
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`Syllabus
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`and, before Shelby County v. Holder, 570 U. S. ___, compliance with
`§5 of the Voting Rights Act. It was proper for the Commission to pro-
`ceed on the last basis here.
`In addition, “minor deviations from
`mathematical equality”—i.e., deviations “under 10%,” Brown v.
`Thomson, 462 U. S. 835, 842—do not, by themselves, “make out a
`prima facie case of invidious discrimination under the Fourteenth
`Amendment [requiring] justification by the State,” Gaffney, supra, at
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`745. Because the deviation here is under 10%, appellants cannot rely
`upon the numbers to show a constitutional violation. Instead, they
`must show that it is more probable than not that the deviation re-
`flects the predominance of illegitimate reapportionment factors ra-
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`ther than “legitimate considerations.” Pp. 3–5.
`
`(b) Appellants have failed to meet that burden here, where the rec-
`ord supports the District Court’s conclusion that the deviations pre-
`dominantly reflected Commission efforts to achieve compliance with
`the Voting Rights Act, not to secure political advantage for the Dem-
`ocratic Party. To meet the Voting Rights Act’s nonretrogression re-
`quirement, a new plan, when compared to the current plan (bench-
`
`mark plan), must not diminish the number of districts in which
`minority groups can “elect their preferred candidates of choice” (abil-
`ity-to-elect districts). A State can obtain legal assurance that it has
`satisfied this requirement if it submits its proposed plan to the Jus-
`tice Department and the Department does not object to the plan. The
`record shows that the Commission redrew the initial map to ensure
`that the plan had 10 ability-to-elect districts, the same number as the
`benchmark plan. But after a statistician reported that the Justice
`Department still might not agree with the plan, the Commission
`changed additional boundaries, causing District 8, a Republican lean-
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`ing district, to become more politically competitive. Because this rec-
`ord well supports the District Court’s finding that the Commission
`was trying to comply with the Voting Rights Act, appellants have not
`shown that it is more probable than not that illegitimate considera-
`tions were the predominant motivation for the deviations. They have
`thus failed to show that the plan violates the Equal Protection
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`Clause. Pp. 5–9.
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`(c) Appellants’ additional arguments are unpersuasive. While Ari-
`zona’s Democratic-leaning districts may be somewhat underpopulat-
`ed and its Republican-leaning districts somewhat overpopulated,
`these variations may reflect only the tendency of Arizona’s 2010 mi-
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`nority populations to vote disproportionately for Democrats and thus
`can be explained by the Commission’s efforts to maintain at least 10
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`ability-to-elect districts. Cox v. Larios, 542 U. S. 947, in which the
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`Court affirmed a District Court’s conclusion that a Georgia reappor-
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`tionment plan violated the Equal Protection Clause where its devia-
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`Cite as: 578 U. S. ____ (2016)
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`Syllabus
`tion, though less than 10%, resulted from the use of illegitimate fac-
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`tors, is inapposite because appellants have not carried their burden
`of showing the use of illegitimate factors here. And because Shelby
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`County was decided after Arizona’s plan was created, it has no bear-
`ing on the issue whether the State’s attempt to comply with the Vot-
`ing Rights Act is a legitimate state interest. Pp. 9–11.
`993 F. Supp. 2d 1042, affirmed.
`BREYER, J., delivered the opinion for a unanimous Court.
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` Cite as: 578 U. S. ____ (2016)
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`Opinion of the Court
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`1
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` NOTICE: This opinion is subject to formal revision before publication in the
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` preliminary print of the United States Reports. Readers are requested to
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` notify the Reporter of Decisions, Supreme Court of the United States, Wash-
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` ington, D. C. 20543, of any typographical or other formal errors, in order
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` that corrections may be made before the preliminary print goes to press.
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`SUPREME COURT OF THE UNITED STATES
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`_________________
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` No. 14–232
`_________________
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` WESLEY W. HARRIS, ET AL., APPELLANTS v.
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`ARIZONA INDEPENDENT REDISTRICTING
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`COMMISSION, ET AL.
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`ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
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`THE DISTRICT OF ARIZONA
`[April 20, 2016]
`JUSTICE BREYER delivered the opinion of the Court.
`Appellants, a group of Arizona voters, challenge a re-
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`districting plan for the State’s legislature on the ground
`that the plan’s districts are insufficiently equal in popula-
`tion. See Reynolds v. Sims, 377 U. S. 533, 577 (1964).
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`Because the maximum population deviation between the
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`largest and the smallest district is less than 10%, the
`appellants cannot simply rely upon the numbers to show
`that the plan violates the Constitution. See Brown v.
`Thomson, 462 U. S. 835, 842 (1983). Nor have appellants
`adequately supported their contentions with other evi-
`dence. We consequently affirm a 3-judge Federal District
`Court decision upholding the plan.
`I
`In 2000, Arizona voters, using the initiative process,
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`amended the Arizona Constitution to provide for an inde-
`pendent redistricting commission. See Arizona State
`Legislature v. Arizona Independent Redistricting Comm’n,
`576 U. S. ___, ___ (2015) (slip op., at 35) (upholding the
`amendment as consistent with federal constitutional and
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`HARRIS v. ARIZONA INDEPENDENT
`REDISTRICTING COMM’N
`Opinion of the Court
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`statutory law). Each decade, the Arizona Commission on
`Appellate Court Appointments creates three slates of
`individuals: one slate of 10 Republicans, one slate of 10
`Democrats, and one slate of 5 individuals not affiliated
`with any political party. The majority and minority leader
`of the Arizona Legislature each select one Redistricting
`Commission member from the first two lists. These four
`selected individuals in turn choose one member from the
`third, nonpartisan list. See Ariz. Const., Art. IV, pt. 2,
`§§1(5)–(8). Thus, the membership of the Commission
`consists of two Republicans, two Democrats, and one
`independent.
`After each decennial census, the Commission redraws
`
`Arizona’s 30 legislative districts. The first step in the
`process is to create “districts of equal population in a grid-
`like pattern across the state.” §1(14). It then adjusts the
`grid to “the extent practicable” in order to take into ac-
`count the need for population equality; to maintain geo-
`graphic compactness and continuity; to show respect for
`“communities of interest”; to follow locality boundaries;
`and to use “visible geographic features” and “undivided . . .
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`tracts.” §§1(14)(B)–(E). The Commission will “favo[r]”
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`political “competitive[ness]” as long as its efforts to do so
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`“create no significant detriment to the other goals.” Id.,
`§1(14)(F). Finally, it must adjust boundaries “as neces-
`sary” to comply with the Federal Constitution and with
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`the federal Voting Rights Act. §1(14)(A).
`
`After the 2010 census, the legislative leadership selected
`the Commission’s two Republican and two Democratic
`members, who in turn selected an independent member,
`Colleen Mathis. Mathis was then elected chairwoman.
`The Commission hired two counsel, one of whom they
`thought of as leaning Democrat and one as leaning Repub-
`lican. It also hired consultants, including mapping spe-
`cialists, a statistician, and a Voting Rights Act specialist.
`With the help of its staff, it drew an initial plan, based
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`Opinion of the Court
`upon the gridlike map, with district boundaries that pro-
`duced a maximum population deviation (calculated as the
`difference between the most populated and least populated
`district) of 4.07%. After changing several boundaries,
`including those of Districts 8, 24, and 26, the Commission
`adopted a revised plan by a vote of 3 to 2, with the two
`Republican members voting against it. In late April 2012,
`the Department of Justice approved the plan as consistent
`with the Voting Rights Act.
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`The next day, appellants filed this lawsuit, primarily
`
`claiming that the plan’s population variations were incon-
`sistent with the Fourteenth Amendment. A 3-judge Fed-
`eral District Court heard the case. See 28 U. S. C.
`
`§2284(a) (providing for the convention of such a court
`whenever an action is filed challenging the constitutional-
`ity of apportionment of legislative districts). After a 5-day
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`bench trial, the court, by a vote of 2 to 1, entered judgment
`for the Commission. The majority found that “the popula-
`tion deviations were primarily a result of good-faith efforts
`to comply with the Voting Rights Act . . . even though
`partisanship played some role.” 993 F. Supp. 2d 1042,
`1046 (Ariz. 2014). Appellants sought direct review in this
`Court. See 28 U. S. C. §1253. We noted probable jurisdic-
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`tion on June 30, 2015, and we now affirm.
`II
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`A
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`The Fourteenth Amendment’s Equal Protection Clause
`
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`requires States to “make an honest and good faith effort to
`construct [legislative] districts . . . as nearly of equal popu-
`lation as is practicable.” Reynolds, 377 U. S., at 577. The
`
`Constitution, however, does not demand mathematical
`perfection. In determining what is “practicable,” we have
`recognized that the Constitution permits deviation when it
`is justified by “legitimate considerations incident to the
`effectuation of a rational state policy.” Id., at 579. In
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`HARRIS v. ARIZONA INDEPENDENT
`REDISTRICTING COMM’N
`Opinion of the Court
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` related contexts, we have made clear that in addition to
`
`the “traditional districting principles such as compactness
`[and] contiguity,” Shaw v. Reno, 509 U. S. 630, 647 (1993),
`those legitimate considerations can include a state inter-
`est in maintaining the integrity of political subdivisions,
`Mahan v. Howell, 410 U. S. 315, 328 (1973), or the compet-
`itive balance among political parties, Gaffney v. Cum-
`mings, 412 U. S. 735, 752 (1973). In cases decided before
`Shelby County v. Holder, 570 U. S. ___ (2013), Members of
`the Court expressed the view that compliance with §5 of
`the Voting Rights Act is also a legitimate state considera-
`tion that can justify some deviation from perfect equality
`of population. See League of United Latin American Citi-
`zens v. Perry, 548 U. S. 399, 518 (2006) (SCALIA, J., con-
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`curring in judgment in part and dissenting in part, joined
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`in relevant part by ROBERTS, C.J., THOMAS & ALITO, JJ.);
`
`id., at 475, n. 12 (Stevens, J., concurring in part and dis-
`senting in part, joined in relevant part by BREYER, J.); id.,
`at 485 n. 2 (Souter, J., concurring in part and dissenting in
`part, joined by GINSBURG, J.); see also Vieth v. Jubelirer,
`541 U. S. 267, 284 (2004) (plurality opinion) (listing exam-
`ples of traditional redistricting criteria, including “compli-
`ance with requirements of the [Voting Rights Act]”). It was
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`proper for the Commission to proceed on that basis here.
`
`We have further made clear that “minor deviations from
`mathematical equality” do not, by themselves, “make out a
`prima facie case of invidious discrimination under the
`Fourteenth Amendment so as to require justification by
`
`
`the State.” Gaffney, supra, at 745. We have defined as
`“minor deviations” those in “an apportionment plan with a
`maximum population deviation under 10%.” Brown, 462
`U. S., at 842. And we have refused to require States to
`justify deviations of 9.9%, White v. Regester, 412 U. S. 755,
`764 (1973), and 8%, Gaffney, 412 U. S., at 751. See also
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`Fund for Accurate and Informed Representation, Inc. v.
`Weprin, 506 U. S. 1017 (1992) (summarily affirming a
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`Opinion of the Court
`District Court’s finding that there was no prima facie case
`where the maximum population deviation was 9.43%).
`In sum, in a case like this one, those attacking a state-
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`approved plan must show that it is more probable than not
`that a deviation of less than 10% reflects the predomi-
`nance of illegitimate reapportionment factors rather than
`the “legitimate considerations” to which we have referred
`in Reynolds and later cases. Given the inherent difficulty
`of measuring and comparing factors that may legitimately
`account for small deviations from strict mathematical
`equality, we believe that attacks on deviations under 10%
`will succeed only rarely, in unusual cases. And we are not
`surprised that the appellants have failed to meet their
`burden here.
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`
`
`B
`Appellants’ basic claim is that deviations in their appor-
`
`tionment plan from absolute equality of population reflect
`the Commission’s political efforts to help the Democratic
`Party. We believe that appellants failed to prove this
`claim because, as the district court concluded, the devia-
`tions predominantly reflected Commission efforts to
`achieve compliance with the federal Voting Rights Act, not
`to secure political advantage for one party. Appellants
`failed to show to the contrary. And the record bears out
`this conclusion. Cf. Anderson v. Bessemer City, 470 U. S.
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`564, 573 (1985) (explaining that a district court’s factual
`finding as to whether discrimination occurred will not be
`set aside by an appellate court unless clearly erroneous).
`The Voting Rights Act, among other things, forbids the
`
`
`use of new reapportionment plans that “would lead to a
`retrogression in the position of racial minorities with
`respect to their effective exercise of the electoral fran-
`chise.” Reno v. Bossier Parish School Bd., 520. U. S. 471,
`478 (1997). A plan leads to impermissible retrogression
`when, compared to the plan currently in effect (typically
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`HARRIS v. ARIZONA INDEPENDENT
`REDISTRICTING COMM’N
`Opinion of the Court
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`called a “benchmark plan”), the new plan diminishes the
`number of districts in which minority groups can “elect
`their preferred candidates of choice” (often called “ability-
`to-elect” districts). See 52 U. S. C. §10304(b). A State can
`obtain legal assurance that it has satisfied the non-
`retrogression requirement if it submits its proposed plan
`to the Federal Department of Justice, and the Department
`does not object to the plan within 60 days. See 28 C. F. R.
`
`§§51.9, 51.52(b) (2015). While Shelby County struck down
`the §4(b) coverage formula, that decision came after the
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`maps in this case were drawn.
`The record in this case shows that the gridlike map that
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`emerged after the first step of the redistricting process
`had a maximum population deviation from absolute equal-
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`
` ity of districts of 4.07%. After consulting with their Voting
`Rights Act expert, their mapping consultant, and their
`statisticians, all five Commissioners agreed that they
`must try to obtain Justice Department Voting Rights Act
`“preclearance” and that the former benchmark plan con-
`tained 10 ability-to-elect districts. They consequently set
`a goal of 10 such districts for the new plan. They then
`went through an iterative process, involving further con-
`sultation, to adjust the plan’s initial boundaries in order to
`enhance minority voting strength. In October 2011 (by a
`vote of 4 to 1), they tentatively approved a draft plan with
`adjusted boundaries. They believed it met their goal of 10
`ability-to-elect districts. And they published the plan for
`public comment.
`
`In the meantime, however, the Commission received a
`report from one of its statisticians suggesting that the
`Department of Justice might not agree that the new pro-
`posed plan contained 10 ability-to-elect districts. It was
`difficult to know for certain because the Justice Depart-
`ment did not tell States how many ability-to-elect districts
`it believed were present in a benchmark plan, and neither
`did it typically explain precisely and specifically how it
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`Opinion of the Court
`would calculate the number that exist in a newly submit-
`ted plan. See 76 Fed. Reg. 7470–7471 (2011). At the same
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`time, the ability-to-elect analysis was complex, involving
`more than simply adding up census figures. The Depart-
`ment of Justice instead conducted a “functional analysis of
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`the electoral behavior within the particular . . . election
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`district,” id., at 7471, and so might, for example, count as
`ability-to-elect districts “crossover” districts in which
`white voters combine their votes with minorities, see
`Bartlett v. Strickland, 556 U. S. 1, 13–14 (2009). Its calcu-
`lations might take into account group voting patterns,
`electoral participation, election history, and voter turnout.
`See 76 Fed. Reg., 7471. The upshot was not random
`decision-making but the process did create an inevitable
`degree of uncertainty. And that uncertainty could lead a
`redistricting commission, as it led Arizona’s, to make
`serious efforts to make certain that the districts it believed
`were ability-to-elect districts did in fact meet the criteria
`that the Department might reasonably apply. Cf. Ala-
`bama Legislative Black Caucus v. Alabama, 575 U. S. ___,
`___ (2015) (slip op., at 22) (“The law cannot insist that a
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`state legislature, when redistricting, determine precisely
`what percent minority population §5 demands [because]
`the standards of §5 are complex . . . . [To do so would] lay
`a trap for an unwary legislature, condemning its redis-
`tricting plan as either . . . unconstitutional racial gerry-
`mandering [or] . . . retrogressive under §5”).
`
`As a result of the statistician’s report, the Commission
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`became concerned about certain of its proposed bounda-
`ries. One of the Commission’s counsel advised that it
`would be “prudent to stay the course in terms of the ten
`districts that are in the draft map and look to . . .
`strengthen them if there is a way to strengthen them.” 993
`
`F. Supp. 2d, at 1058 (internal quotation marks omitted).
`Subsequently, the Commission adopted several changes to
`the boundaries of Districts 24 and 26. It reduced the
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`HARRIS v. ARIZONA INDEPENDENT
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`REDISTRICTING COMM’N
`Opinion of the Court
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`populations of those districts, thereby increasing the
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`percentage of Hispanic voters in each. The Commission
`approved these changes unanimously.
`Changes in the boundaries of District 8, however,
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`proved more controversial. District 8 leaned Republican.
`
`A Democrat-appointed Commissioner asked the mapping
`specialist to look into modifications that might make
`District 8 politically more competitive. The specialist
`returned with a draft that shifted the boundary line be-
`tween District 8 and District 11 so as to keep several
`communities with high minority populations together in
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`District 8. The two Republican-appointed Commissioners
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`objected that doing so would favor Democrats by “hy-
`perpacking” Republicans into other districts; they added
`that the Commission should either favor political competi-
`tiveness throughout the State or not at all. Id., at 1059
`(internal quotation marks omitted).
`The Democrat-appointed proponent of the change re-
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`plied that District 8 had historically provided minority
`groups a good opportunity to elect their candidate of
`choice—an opportunity that the changes would preserve.
`The Voting Rights Act specialist then said that by slightly
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`increasing District 8’s minority population, the Commis-
`sion might be able to claim an 11th ability-to-elect district;
`and that fact would “unquestionably enhance the submis-
`sion and enhance chances for preclearance.” Ibid. (inter-
`nal quotation marks omitted). The Commission’s counsel
`then added that having another possible ability-to-elect
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`district could be helpful because District 26 was not as
`strong an ability-to-elect district as the others. See ibid.
`
`Only then, after the counsel and consultants argued for
`District 8 changes for the sake of Voting Rights Act pre-
`clearance, did Chairwoman Mathis support those changes.
`On that basis, the Commission ultimately approved the
`changes to District 8 by a vote of 3 to 2 (with the two
`Republican-appointed commissioners dissenting). The
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`Opinion of the Court
`total population deviation among districts in this final
`map was 8.8%. While the Commission ultimately con-
`cluded that District 8 was not a true ability-to-elect dis-
`trict, the State’s submission to the Department of Justice
`cited the changes to District 8 in support of the argument
`for preclearance. On April 26, 2012, the Department of
`Justice precleared the submitted plan.
`On the basis of the facts that we have summarized, the
`
`
`District Court majority found that “the population devia-
`tions were primarily a result of good-faith efforts to com-
`ply with the Voting Rights Act . . . even though partisan-
`ship played some role.” 993 F. Supp. 2d, at 1046. This
`conclusion was well supported in the record. And as a
`
`result, appellants have not shown that it is more probable
`than not that illegitimate considerations were the predom-
`inant motivation behind the plan’s deviations from math-
`ematically equal district populations—deviations that
`were under 10%. Consequently, they have failed to show
`that the Commission’s plan violates the Equal Protection
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`Clause as interpreted in Reynolds and subsequent cases.
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`C
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`The appellants make three additional arguments. First,
`they support their claim that the plan reflects unreason-
`able use of partisan considerations by pointing to the fact
`that almost all the Democratic-leaning districts are some-
`what underpopulated and almost all the Republican-
`leaning districts are somewhat overpopulated. That is
`likely true. See 993 F. Supp. 2d, at 1049 (providing a
`chart with percentage deviation figures by district). But
`that fact may well reflect the tendency of minority popula-
`tions in Arizona in 2010 to vote disproportionately for
`Democrats. If so, the variations are explained by the
`Commission’s efforts to maintain at least 10 ability-to-
`elect districts. The Commission may have relied on data
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`from its statisticians and Voting Rights Act expert to
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`HARRIS v. ARIZONA INDEPENDENT
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`REDISTRICTING COMM’N
`Opinion of the Court
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`create districts tailored to achieve preclearance in which
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`minority voters were a larger percentage of the district
`population. That might have necessitated moving other
`voters out of those districts, thereby leaving them slightly
`underpopulated. The appellants point to nothing in the
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`record to suggest the contrary.
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`Second, the appellants point to Cox v. Larios, 542 U. S.
`947 (2004), in which we summarily affirmed a district
`court’s judgment that Georgia’s reapportionment of repre-
`sentatives to state legislative districts violated the Equal
`Protection Clause, even though the total population devia-
`tion was less than 10%. In Cox, however, unlike the pre-
`sent case, the district court found that those attacking the
`plan had shown that it was more probable than not that
`the use of illegitimate factors significantly explained
`deviations from numerical equality among districts. The
`district court produced many examples showing that
`population deviation as well as the shape of many districts
`“did not result from any attempt to create districts that
`were compact or contiguous, or to keep counties whole, or
`to preserve the cores of prior districts.” Id., at 949. No
`legitimate purposes could explain them. It is appellants’
`inability to show that the present plan’s deviations and
`boundary shapes result from the predominance of simi-
`
`larly illegitimate factors that makes Cox inapposite here.
`Even assuming, without deciding, that partisanship is an
`illegitimate redistricting factor, appellants have not car-
`ried their burden.
`
`Third, appellants point to Shelby County v. Holder, 570
`U. S. ___ (2013), in which this Court held unconstitutional
`sections of the Voting Rights Act that are relevant to this
`case. Appellants contend that, as a result of that holding,
`Arizona’s attempt to comply with the Act could not have
`been a legitimate state interest. The Court decided Shelby
`County, however, in 2013. Arizona created the plan at
`issue here in 2010. At the time, Arizona was subject to
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`

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` Cite as: 578 U. S. ____ (2016)
`
`Opinion of the Court
` the Voting Rights Act, and we have never suggested the
`contrary.
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` 11
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`*
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`*
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`For these reasons the judgment of the District Court is
`affirmed.
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`
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`It is so ordered.