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 proposed plan contained 10 ability-to-elect districts. It was difficult to know for certain because the Justice Department 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 would calculate the number that exist in a newly submitted plan. See
76 Fed.Reg. 7470–7471 (2011). At the same time, the ability-to-elect analysis was complex, involving more than simply adding up census figures. The Department of Justice instead conducted a “functional analysis of the electoral behavior within the particular ... election 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, 129 S.Ct. 1231, 173 L.Ed.2d 173 (2009). Its calculations 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.
Alabama Legislative Black Caucus v. Alabama, 575 U.S. ––––, ––––, 135 S.Ct. 1257, 1273, 191 L.Ed.2d 314 (2015) (“The law cannot insist that a 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 redistricting plan as either ... unconstitutional racial gerrymandering [or] ... retrogressive under § 5”).